Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Robert J. Johnston Jr., Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO UNSEAL MATERIALS SUBJECT TO PROTECTIVE ORDER No. CR-03-1167-PHX-DGC

The United States of America, by and through counsel undersigned, hereby responds to defendant Johnston's response to defendant's Motion to Unseal Materials Subject to Protective Order. The position of the United States, set forth more completely in the attached Memorandum of Points and Authorities, is that the materials referenced by the defendant are neither necessary for nor material to defendant's sentencing. Respectfully submitted this 17 th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Timothy T. Duax TIMOTHY T. DUAX Assistant U.S. Attorney

Case 2:03-cr-01167-DGC

Document 1366

Filed 05/17/2006

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MEMORANDUM OF POINTS AND AUTHORITIES I. Background On or about February 16, 2006, the defendant entered a plea of guilty to an information alleging Misprision of the felony of Possession With the Intent to Distribute Methamphetamine.

4 The factual basis for the guilty plea was that on February, 2003, a member of the Hells Angels 5 Motorcycle Club sold 1/16 of an ounce of methamphetamine to an undercover agent, thus 6 committing the felony of Possession With the Intent to Distribute Methamphetamine. The 7 transaction occurred in the clubhouse of the Hells Angels Motorcycle Club, Mesa Chapter. 8 Defendant Johnson had knowledge of the commission of the offense, did conceal the same, and 9 did not report the commission of the felony to authorities. It is for the offense thus described that 10 defendant is to be sentenced. 11 On January 6, 2006, the United States filed a Notice of Potential Discovery. Shortly 12 thereafter, on or about January 13, 2006, the United States filed a Second Supplemental 13 Application to Defer Certain Discovery, seeking this Court's order precluding discovery of the 14 material referenced in the January 6, 2006 Notice. It is that material the defendant seeks to have 15 produced. Although the defendant states that this Court reviewed the material in question in 16 camera before issuing its protective order, the United States does not believe the court did so. 17 II. Legal Argument 18 The defendant claims the materials sought are "material Brady information", and cites Brady 19 v. Maryland, 373 U.S. 83, 87 (1963), United States v. Agurs, 427 U.S.972 (1976), and United 20 States v. Bagley, 473 U.S. 667, 679 (1985), among others, as authority. Defendant is incorrect, 21 as the information sought does not tend to exculpate the defendant from the defense to which 22 he has plead guilty (particularly in light of defendant's guilty plea), does not create a reasonable 23 doubt as to the defendant's guilt (he admitted guilt), does not undermine confidence in the 24 outcome of the trial if suppressed (defendant admitted guilt), is not relevant to the development 25 of a possible defense, and does not enable the defendant to substantially alter the quantum of 26 proof in his favor. Consequently, the materials need not be disclosed. 27 28 2

Case 2:03-cr-01167-DGC

Document 1366

Filed 05/17/2006

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The defendant also suggests this Court harbors a bias against the defendant, and bases this claim on the Court's decision to convene an anonymous jury, and its consideration of the United States' January 13, 2006, request for a protective order. The insinuation is that because the court was concerned about threats to witnesses, that it will consider the defendant violent and impose a harsher sentence. This situation exists in all cases in which such protective orders have been issued. The situation does not require all such orders be automatically set aside for purposes of sentencing. The bias (if any) attenuating the issuance of protective orders to protect witnesses does not require access to the protected information. This is particularly true in the present case where there are no facts to which the defendant has admitted that involve violent or threatening behavior. Furthermore, if the defendant desires to provide evidence of defendant's peaceful nature to the court, or any other evidence that casts defendant in a positive light, he may do so. Consequently, defendant is not precluded from rebutting such bias as he feels is harbored by the court. As the materials requested by the defendant are neither Brady, nor material, they are not necessary for the defendant's sentencing, and the court's refusal to unseal such materials does not impinge upon the defendant's right to a fair and impartial sentencing. Wherefore, based upon the foregoing, the United States respectfully requests this Court deny the defendants' motion in its entirety. Respectfully submitted this 17 th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Timothy T. Duax TIMOTHY T. DUAX Assistant U.S. Attorney

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Case 2:03-cr-01167-DGC

Document 1366

Filed 05/17/2006

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