Free Motion to Unseal Document - 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 Attorney for Defendant Johnston IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA STATE OF ARIZONA, ) Case No. CR 03-1167-PHX-DGC ) ) MOTION TO UNSEAL MATERIALS ) SUBJECT TO PROTECTIVE ORDER ) ) ) ) ) )

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Plaintiff,
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vs.
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ROBERT J. JOHNSTON, JR. (1),
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Defendant.
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COMES NOW the defendant, ROBERT J. JOHNSTON, JR. by and through counsel,
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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 unseal 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. This Motion is supported by the Memorandum of Points and Authorities attached hereto. DATED this 28th day of April, 2006.

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

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS
The government filed its first indictment in this matter on November 18, 2003. In Count 1, Mr. Johnston and other defendants were charged with RICO. Count 1 further alleged 16 racketeering acts, which included act 3 -- witness tampering against Mr. Johnston and act 16 -conspiracy to distribute methamphetamine and marijuana against Mr. Johnston. Count 2 alleged a RICO conspiracy against Mr. Johnston. He, along with other

defendants, were charged with a conspiracy to conduct the affairs of an enterprise through a pattern of racketeering from 1999 until "the present" (November 18, 2003). The government filed a superseding indictment on September 30, 2004, and a second superseding indictment on January 19, 2005, neither of which charged Mr. Johnston. Subsequent to certain events on January 3, 2006, the government reviewed additional discovery to determine the nature of its case against the defendants. See Government's Memorandum in Support of Its Motion to Dismiss Counts (Docket #1292), which is attached hereto as Exhibit A and incorporated herein. After such re-evaluation, the government made new plea offers to most of the defendants because "certain portions of the government's indictment [were] untenable." Id. (emphasis added) Moreover, this Court in its Order, dated March 8, 2006, noted that after reviewing the materials subject to the Protective Order it was satisfied that the prosecution's reasons for seeking a dismissal against defendant Kevin Augustiniak were from "reasons arising in the federal racketeering case ..." On January 13, 2006, the government requested a Protective Order with respect to the additional discovery materials that were a part of its Notice of Potential Discovery, which was filed on January 6, 2006. The government claims that it did not know nor could have known about these additional materials prior to January 3, 2006; however, the ATF case agent, Mr. Joe Slatalla, claimed otherwise. See Department of Justice Plea Letter, dated February 7, 2006,

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attached hereto as Exhibit B and incorporated herein. This Court granted the motion for a Protective Order on January 13, 2006 following an in camera review of such materials. At a hearing on February 8, 2006, this Court sua sponte concluded that this case should have an anonymous jury. See Court Transcript attached hereto as Exhibit C and incorporated herein. This Court indicated during the hearing that it made its decision "based on the

information that I have reviewed that caused me to grant the protective order, which is information that witnesses were at risk in the case." In addition, this Court noted that the decision for an anonymous jury was based "upon the concern that I developed in reviewing information about potential threats to witnesses in the case." Id. On February 16, 2006, Mr. Johnston pled guilty to an Information, Misprision of a Felony in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C) and Title 18 United States Code, Section 4, a Class E Felony offense. All other counts against Mr. Johnston were dismissed.

II. LEGAL ARGUMENT
Consistent with established principles of due process, the government may not suppress evidence favorable to an accused that is "material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963) (emphasis added); Rovario v. United States, 353 U.S. 53, 60-

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61 (1957). Evidence, whether documentary or testimonial, is material if it would tend to
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exculpate a defendant or reduce the penalty he potentially faces, see Brady Id. at 88 (emphasis
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added); create a reasonable doubt as to the defendant's guilt, see United States v. Agurs, 427 U.S.
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972 (1976); or undermine confidence in the outcome of the trial if suppressed, see United States v. Bagley, 473 U.S. 667, 679 (1985). A document is material if it is "relevant to the development of a possible defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990); United States v. Olano, 62 F.3d 1180, 1203 (9th Cir.1995), or if it will enable the accused to "substantially alter the quantum of proof
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in his favor," United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir.1976) (citations omitted). As noted in United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 (E.D. Cal 1994): This court defines "material information" for Rule 16(a)(1)(C) purposes as that information, not otherwise provided for or precluded by discovery rules, which is significantly helpful to an understanding of important inculpatory or exculpatory evidence. "`The materiality requirement typically `is not a heavy burden,' rather, evidence is material as long as there is a strong indication that ... [the evidence] will `play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.' "United States v. Jackson, 850 F.Supp. 1481, 1503 (D.Kan.1994) quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993). [FN4] For example, if the government plans to use the results of scientific tests as evidence, data and reports which directly underlie those results are generally important to an understanding of the evidence. FN4. The court has included both inculpatory and exculpatory information in its definition. There is no justifiable reason to withhold otherwise producible information or evidence simply because it is inculpatory--such information may be as "material" to the defense as exculpatory information. Defendants have a right to analyze and prepare for facially damning evidence. Although safety and burden considerations, at times, justify the withholding of discovery information, there is entirely too much "hidethe-ball" in criminal discovery with respect to easily producible documents. (Emphasis added).

In Bagley, the Supreme Court reiterated that Brady is based upon the requirement of due process and the concern that the suppressed evidence may deprive the defendant of a fair trial. Moreover, the fundamental question is whether the outcome of the proceeding might have been

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affected by the suppressed evidence.
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All of the items sought are necessary to aid in discovering facts -- whether inculpatory or
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exculpatory -- which will enable Mr. Johnston to obtain a fair and just sentencing hearing with an informed and effective counsel. Without the ability to review the materials subject to the protective order -- materials that clearly influenced this Court's opinion of the defendants as evidenced by its sua sponte decision for an anonymous jury ­ the defense is not able to provide effective counsel to Mr. Johnston at his sentencing hearing. Inculpatory evidence is just as

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material to a fair and impartial proceeding as exculpatory evidence. See Liquid Sugars, Inc. at 471. At issue is the right of Mr. Johnston to receive a fair and impartial proceeding; not providing material Brady information is a clear violation of Mr. Johnston's due process rights. Although this Court has previously issued a Protective Order with respect to the suppressed materials, the defense respectfully requests this honorable Court to reconsider the

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order and disclose the materials so that Mr. Johnston may receive a fair and impartial sentencing
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hearing.
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In United States v. Morgan, 1992 U.S. App. LEXIS 10906 (4th Circuit 1992) (unpublished opinion; see Exhibit D attached hereto for a copy thereof), the court determined that "an order sealing documents should not necessarily continue in perpetuity." Id at 10; see also Olympic Refining Co. v. Carter, 332 F.2d 260, 264-66 (9th Circuit 1964) (ex parte anti-trust proceeding in which the court reversed the protective orders holding that the orders must be modified in order to meet the reasonable needs of the litigants). In Morgan, the defendants sought to unseal notes written by an FBI agent that were subject to a protective order following the court's in camera review. In its opinion, the court stated that "[w]here the motion is brought by a party that has had a full opportunity to litigate the initial imposition of the seal, the

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appropriate threshold question is whether or not that party has shown a change in
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circumstances sufficient to warrant a reconsideration of the seal." Id at 11 (emphasis
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added). In addition, in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the Supreme Court held that if a defendant is aware of specific information, he is permitted to request it from the government and argue its materiality. Id. At 60. Moreover, the court held that the Brady duty to disclose is ongoing and "information that may be deemed immaterial upon original examination may

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become important as the proceedings progress, and the court would be obligated to release information material to the fairness of trial." Id. (emphasis added). In the case at hand, the suppressed information is clearly material notwithstanding the fact that some of the information may be inculpatory. This Court's decision making process was effected by the information subject to the Protective Order. As the Supreme Court in Bagley

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pronounced, the fundamental question is whether or not the proceeding might have been affected
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by the suppressed evidence. Mr. Johnston's right to a fair and impartial sentencing hearing is
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severely hampered if the information is not disclosed to the defense. If this Court was swayed by such evidence to the point that it sought to protect potential jurors, the defense must know the totality of such evidence so that it may examine, analyze and rebut such evidence. Not to provide this opportunity flies in the face of Brady and its progeny, which seek to "ensure that a miscarriage of justice does not occur." Bagley at 675. Moreover, the fact that the Protective Order previously has been issued does not prevent a reconsideration of the issue. The circumstances of this case have clearly changed, which is evident by the government's admission that the new discovery subject to the Protective Order "made certain portions of [its] indictment untenable, and resulted in an amended course of

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prosecution." This new discovery obtained by the government, which was thereafter made
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subject to the Protective Order, is also clearly material Brady information. Information that lead
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this Court sua sponte to provide for an anonymous jury is material to the defense. If this Court used such information in its decision making process, due process requires that the defense be afforded the opportunity to use it in its decision making process as well. To not do so clearly violates Brady and its progeny.

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III. CONCLUSION
WHEREFORE, for the foregoing reasons, defendant respectfully requests that this Court

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enter an Order compelling the state to disclose the requested materials.
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RESPECTFULLY SUBMITTED this 28th day of April, 2006.
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/s/Brian F. Russo Brian F. Russo Attorney for Defendant COPY of the foregoing electronically mailed this 28th day of April, 2006, to:

The Honorable David G. Campbell Judge of the U.S. District Court Keith Vercauteran Timothy Duax Assistant United States Attorneys All Defense Counsel By:

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