Free Order on Motion for Discovery - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, 10 Plaintiff, 11 vs. 12 Robert J. Johnston, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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CR-03-1167-PHX-DGC ORDER

Pending before the Court is the Government's sealed amended second supplemental ex parte application to defer certain discovery ("amended application") filed on February 3, 2006. Doc. #1232. The Court will grant the amended application pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure. The Court will set forth its specific reasons for granting the amended application in a separate sealed order. Discussion On January 6, 2006, the Government filed a notice of potential discovery. Doc. #1027. The notice stated that during a meeting on January 3, 2006, the United States Attorney's Office learned from ATF that there were recordings and documents summarizing those recordings that had not previously been known or given to the United States Attorney's Office. Id. at 1. The notice further stated that a review of the material was underway and that depending on the nature of the material, the Government would disclose the material to Defendants, seek a protective order from the Court, or inform the Court of the nondiscoverable nature of the material, as appropriate. Id.
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Case 2:03-cr-01167-DGC

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On January 17, 2006, the Government filed a second supplemental ex parte application to defer certain discovery ("second supplemental application") and a public notice of the filing. Docs. ##1174, 1056. The second supplemental application sought to defer discovery of the recordings and written summaries referenced in the Government's notice of potential discovery. See id.; Doc. #1027. At the thirteenth case management conference held on January 19, 2006, the Court informed counsel for the Government that more detail was required before the Court could rule on the second supplemental application. See Doc. #1104. The Government provided additional detail in the amended application. Doc. #1232. Having considered the facts and arguments set forth in the amended application and the Government's prior ex parte applications to defer discovery, see Docs. ##800, 1061, the Court concludes that the Government has shown good cause under Rule 16(d)(1) to defer disclosure of the recordings and written summaries at issue. See Fed. R. Crim. P. 16(d)(1) ("At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief."). application. IT IS ORDERED: 1. The Government's sealed amended second supplemental ex parte application The Court accordingly will grant the amended

to defer certain discovery (Doc. #1232) is granted. 2. The Government shall disclose to Defendants all material covered by this order

by March 10, 2006. 3. The Government shall file a public revised notice regarding documents to be

disclosed at a later time (see Doc. #852) by March 10, 2006. The revised notice shall include all material being withheld from Defendants and shall identify the material by the numbers set forth in Doc. #852, the exact number of items or pages of documents, and the basis on which the material has been withheld (this Court's Rule 16(d)(1) orders, Brady/Giglio material not covered by Rule 16, or the Jencks Act). 4. The Government also shall file by March 10, 2006 an ex parte revised notice
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Case 2:03-cr-01167-DGC

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regarding documents to be disclosed at a later time that includes the information described above in paragraph 4 as well as the corresponding numbers from the parties' joint discovery matrix.1 DATED this 23rd day of February, 2006.

On January 13, 2006, the Government submitted to the Court an ex parte second revised notice regarding the documents to be disclosed at a later time. A review of the docket shows that the Government has not formally filed the notice with the Court. See Doc. #1012 ¶ 8 (December 27, 2005 order requiring the Government to file the notice by January 13, 2006). To ensure that the notice is part of the official record in this case, the Government shall file the notice with the Court by March 10, 2006. The Government may file the notice ex parte and under seal. See id.
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Case 2:03-cr-01167-DGC