Free Reply to Response - District Court of Arizona - Arizona

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, AZ 85003 602-340-1133 telephone 602-258-9179 facsimile E-mail: [email protected] Attorney for Defendant Johnston IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167-PHX-DGC DEFENDANT'S REPLY TO GOVERNMENT'S RESPONSE RE: MOTION TO UNSEAL MATERIALS SUBJECT TO PROTECTIVE ORDER

COMES NOW the defendant, ROBERT J. JOHNSTON, JR. by and through counsel, Brian F. Russo, and hereby submits this Reply to the Government's Response to Defendant's Motion requesting that this honorable Court issue an order unsealing the materials subject to a Protective Order dated January 13, 2006 because such materials contain Brady information that are fundamental to defendant's ability to effectively prepare for and present evidence at his sentencing hearing. The government's Response objects to the release of the protected material on essentially two grounds: (1) the evidence under protective order is not material; and (2) it is not relevant to that which defendant pled guilty. The government is incorrect on both claims for the reasons set forth below.

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The government misunderstands the materiality standard as articulated by the Supreme Court in Giglio v. United States, 405 U.S. 150 (1972). The Court stated that a finding of materiality is required under Brady for non-disclosure of

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evidence affecting the credibility of a government witness. The Court further added that under the "materiality" standard a new trial is required if the suppressed impeachment evidence "could ... in any reasonable likelihood have affected the judgment of the jury." Id. at 154.

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The evidence subject to protective order in this case falls within the standard set forth in Brady and Giglio for several reasons. Primarily, the government has conceded that much of the evidence under protection is Giglio. (See copy of March 20, 2006 Government's Third Revised Notice Regarding the Documents to Be

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Disclosed at a Later Time attached hereto as Exhibit A). In that Notice the government lists many of the items and characterizes them as being Giglio and under the Protective Order. Given the government's concession that much of the material under protective order is impeachment material and the fact they admitted the evidence made the RICO case untenable, it logically follows that this material has a reasonable likelihood of affecting the judgment of those to whom it is presented

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and necessarily satisfies the threshold question of materiality. Giglio v. United States, 405 U.S. 150, 154 (1972).

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The government attempts to distinguish the charges to which Mr. Johnston plead from the original charges in the indictment in an effort to diminish his claim

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for the protected materials. The government again misunderstands the relevant case law in this area. Brady and its progeny provide that the suppressed materials should be disclosed if there is a reasonable probability that the evidence would have produced a different outcome. Strickler v. Greene, 527 U.S. 263, 265 (1999).

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This standard and the protections it is intended to provide do not end at a guilty plea proceeding. Rather, they exist to insure fair and impartial proceedings, including sentencing. See Brady v. Maryland, 373 U.S. 83 (1963) (the government may not suppress evidence favorable to an accused that is material to either guilt or

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punishment). In addition, as this Court and the government know form experience, the probation department will reference the RICO charges in either Relevant Conduct or Impact of Plea sections, regardless of the way in which defendant resolved his case. The government has provided materials to the presentence writer that will be factored into her recommendation, and the report in the ways referenced above. The government has failed to make any valid claim as to why the protected

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materials should remain as such for sentencing purposes. The original request was for trial purposes. Circumstances have changed and Mr. Johnston has

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demonstrated materiality and a need for the evidence. Anything less is a denial of due process.

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RESPECTFULLY SUBMITTED this 26th day of May, 2006.

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

COPY of the foregoing electronically mailed this 26th day of May, 2006, to: Tim Duax Keith Vercauteren Assistant United States Attorneys All Defense Counsel

By:

/s/

Case 2:03-cr-01167-DGC

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