Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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WO

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 dismiss regarding lost or destroyed evidence. See Doc. #969. The Government has filed a response and Defendant has filed a reply. See Docs. ##1018, 1032. For the reasons set forth below, the Court will deny the motion. Discussion Defendant Johnston moves to dismiss the indictment on the ground that the Government violated his due process rights by destroying the handwritten notes of a confidential informant, CI-790. Doc. #969. The Government states that the notes have not been destroyed and that it will disclose them on February 24, 2006. Doc. #1018 at 1. Defendant states in his reply that it should be presumed that the notes have been lost or destroyed since the Government did not specifically identify them in its notices regarding withheld documents. Doc. #1032 at 2.
Document 1219 Filed 02/14/2006 Page 1 of 2

Case 2:03-cr-01167-DGC

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The Court disagrees. Defendants requested the handwritten notes of CI-790 in items 439-40 of the parties' joint discovery matrix. Docs. ##743 at 60-61. The Government stated that it would disclose the notes six weeks before trial. Id. See also Docs. ##745, 852. The Court granted a protective order with respect to matrix items 439-40 on October 18, 2005. Doc. #844 at 7. The Court subsequently ordered the Government to disclose these items by February 24, 2006. Doc. #1012 at 4. A review of the record supports the Government's assertions that it has the notes of CI-790 in its possession and will disclose them to Defendants on February 24, 2006. The Court accordingly will deny Defendant Johnston's motion. IT IS THEREFORE ORDERED that Defendant Johnston's motion to dismiss regarding lost or destroyed evidence (Doc. #969) is denied. DATED this 14th day of February, 2006.

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Case 2:03-cr-01167-DGC

Document 1219

Filed 02/14/2006

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