Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 85004-4408 Arizona State Bar No.013439 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America No. 03-1167-PHX-DGC Plaintiff, v. Robert J. Johnston, et. al., Defendants. GOVERNMENT'S RESPONSE TO DEFENDANT JOHNSTON'S MOTION TO SUPPRESS

The United States, by and through undersigned counsel, hereby responds to Defendant

17 Johnston's Motion Suppress and, for the reasons stated in the attached Memorandum of Points 18 and Authorities, moves this Court to deny the same. 19 20 21 22 23 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 13th day of January, 2006.

Case 2:03-cr-01167-DGC

Document 1047

Filed 01/13/2006

Page 1 of 10

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION 3 By his Motion, Defendant Johnston seeks to suppress items of evidence seized during the

4 search of his residence on July 8, 2003, claiming that Agent Slatella, the affiant for the search 5 warrant, intentionally, knowingly or recklessly included misrepresentations of fact and concealed 6 other material facts. Specifically, Defendant claims that Agent Slatella misled the court by 7 asserting that the Hells Angles Motorcycle Club ("HAMC") could be considered, in effect, 8 wholly illegitimate since such a large portion of the HAMC's activities were illegitimate. 9 Additionally, Defendant argues that Agent Slatella misled the court by omitting the fact that CW, 10 a confidential witness utilized during the investigation, was using methamphetamine on a regular 11 basis. 1/ 12 As set forth more fully below, Defendant's Motion must be denied since he fails to meet his

13 burden to merit a Franks hearing. 14 II. LEGAL ANALYSIS 15 16 17
A. Defendant Fails to Meet His Burden to Merit a Franks Hearing

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that where the defendant makes a substantial preliminary showing that the affiant included in his

18 affidavit a false statement knowingly and intentionally, or with reckless disregard for the truth, 19 and if the allegedly false information is necessary to the finding of probable cause, the Fourth 20 Amendment requires that a hearing be held at the defendant's request. The holding in Franks 21 has been extended to include deliberate or reckless omissions. United States v. Tham, 960 F.2d 22 1391, 1395 (9th Cir.1991) (citing United States v. Stanert, 762 F.2d 775, 781, as amended by 23 769 F.2d 1410 (9th Cir.1985)). 24 25 Defendant Johnston also alleges in his Motion to Suppress that the evidence seized during the search of his residence must be suppressed since there was no nexus set forth in the 26 affidavit between the alleged criminal activity and his residence. This allegation was specifically raised in his and Defendant Schaefer's Joint Motion to Quash and was addressed in 27 the United States' Response to the same. 28 2
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Document 1047

Filed 01/13/2006

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In light of the assumption of validity afforded a supporting affidavit, a defendant moving

2 for a Franks hearing bears the burden of proof and must accompany any allegations with an offer 3 of proof. United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir.2002); see also Franks, 4 supra. 5 This Circuit has held that before a court is required to hold a Franks hearing, the following

6 criteria must be met: 7 8 9 10 11 United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir.1985), amended on other grounds, 777 12 F.2d 543 (9th Cir.1985)(quoted by United States v. Perdomo, 800 F.2d 916, 920 (9th Cir.1986)). 13 Here, Defendant first seeks a Franks hearing on the basis that Agent Slatella intentionally (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof , including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause.

14 or recklessly misstated the extent of the HAMC's criminal activities by describing the HAMC 15 as "wholly illegitimate." (See Motion to Suppress at pg. 4 lines 15-18.) In support of his 16 contention, Defendant attaches deposition testimony of Jay Anthony Dobyns, a Special Agent 17 with ATF, taken during unrelated forfeiture proceedings initiated by the Arizona Attorney 18 General's Office. Without factual support, Defendant has twisted Agent Dobyns' testimony and 19 its import. 20 In response to a line of questions related to types of non-criminal activities engaged in by

21 the HAMC posed by Cameron Morgan, an attorney who represented the interests of a HAMC 22 member in the forfeiture proceedings, Agent Dobyns agreed that the HAMC members enjoy 23 motorcycles and a camaraderie, which he agreed were not in themselves illegitimate. (See Exh. 24 6 at pgs. 18-19, attached to Motion to Suppress). Additionally, when Agent Dobyns was asked 25 by Mr. Morgan whether the HAMC was a legitimate organization in general, Agent Dobyns 26 responded only that the organization was real, that it existed and was formalized, so in that 27 sense it was legitimate. (Id.) Agent Dobyns did not testify that HAMC's purpose or scope of 28 activities was legitimate. 3
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With respect to his allegation that Agent Slatella misrepresents the extent of the criminal

2 activities of the HAMC, Defendant Johnston falls far short of satisfying his burden requiring a 3 Franks hearing. A review of Agent Slatalla's affidavit reveals that he was merely stating his 4 opinion as to the illegitimacy of the HAMC. Specifically, Agent Slatalla's affidavit provides 5 the following: 6 7 8 9 I believe that the HAMC OMG [Outlaw Motorcycle Gang](including both its members and its associates) in the State of Arizona is a criminal racketeering enterprise within the meaning of Title 18, United States Code, §1961(4)[sic], and that such a large portion of the enterprise's activities are illegitimate that they can be considered, in effect, wholly illegitimate. I believe that racketeering activities and other criminal acts are pervasive throughout the HAMC OMG and have been since before the inception of this investigation.

10 (See Slatalla's affidavit at pg 107 (emphasis added)). Nothing contained in the submitted 11 deposition testimony of Agent Dobyns establishes, in any way, that Agent Slatalla intentionally 12 or recklessly misstated his opinion with respect to the illegitimacy of the HAMC; nor does it 13 detract from Agent Slatalla's conclusions about the HAMC in light of all the other evidence 14 offered. 15 Even assuming that the deposition testimony of Agent Dobyns establishes that Agent

16 Slatalla intentionally or recklessly misrepresented his opinion of the illegitimacy of the HAMC, 17 Defendant still fails to satisfy his second burden of establishing that the affidavit does not 18 establish probable cause without the allegedly false information. 19 In United States v. Rubio, 727 F.2d 786 (9th Cir.1984), on which Defendant so heavily relies,

20 the Ninth Circuit addressed whether a search warrant authorizing the seizure of indicia of 21 membership or association with the HAMC lacked probable cause. Having determined that the 22 warrant before them sought indicia of association which constituted "mere evidence," i.e., items 23 whose sole interest to the government was their introduction at trial to prove the government's 24 case, the court determined that "probable cause must be examined in terms of cause to believe 25 that the evidence sought will aid in a particular apprehension or conviction." Id. Specifically, 26 the Rubio court explained that the warrants must be examined for probable cause to believe there 27 was a connection between the evidence sought and a violation of the RICO statute. 28 RICO, as set forth in 18 U.S.C. §1962(c), makes it unlawful "for any person employed by 4
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1 or associated with any enterprise engaged in, or the activities of which affect, interstate or 2 foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such 3 enterprise's affairs through a pattern of racketeering activity . . . ." Therefore, under §1962(c), 4 the Rubio court recognized that evidence of association, the existence of the enterprise as well 5 as evidence of the pattern of racketeering activity would be potentially seizable. Rubio, 727 F.2d 6 at 793. However, the Rubio court found that "none of this evidence would be seizable under the 7 Fourth Amendment except upon a showing of probable cause to believe it was somehow 8 connected to criminal activity." Id. 9 With respect to the required connection to criminal activity, the Rubio court acknowledged

10 the following: 11 12 13 14 15 Rubio, 727 at 793. Adopting the assessment of the Second Circuit in United States v. Scotto, 641 16 F.2d 47, 54 (2d. Cir. 1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109 (1981), the Rubio court 17 held "`simply committing predicate acts which are unrelated to the enterprise or one's position 18 within it would be insufficient' to establish a violation of §1962(c)." Accordingly, the Rubio 19 court held: 20 21 22 23 24 Rubio, 727 F.2d at 794. 25 Applying its holding to the case before it, the Rubio court determined that the affidavit in [I]n the absence of a showing that such a large portion of the RICO enterprises' activities are illegitimate so that the entire enterprise, in effect, becomes wholly illegitimate, the affidavit in support of a search warrant authorizing the seizure of indicia of membership or association must also provide probable cause to believe that the subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering. If such a large portion of the subject organization's activities are illegitimate so that the enterprise could be considered, in effect, wholly illegitimate, then there would certainly be cause to believe that evidence of a suspect's association with that enterprise would aid in a RICO conviction. However, where there is no allegation that the enterprise is wholly illegitimate, as is true in this case, evidence of mere association would not necessarily aid in obtaining a conviction.

26 support of the challenged search warrant failed to set forth probable cause that any of the 27 defendants had conducted the affairs of the HAMC through a pattern of racketeering. Instead, 28 the Rubio court found that the facts in the affidavit were limited to the establishment of 5
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1 association with the enterprise. Id. In fact, with respect to the issue of whether the defendants 2 had conducted the affairs of the enterprise through a pattern of racketeering, the court found the 3 search warrant affidavit merely provided that a federal grand jury had returned an indictment 4 against the defendants charging them with associating with a RICO enterprise. This, the Rubio 5 court held, was insufficient to establish the requisite probable case. 6 In the present case, unlike the affidavit considered in Rubio, Agent Slatalla's affidavit here

7 sufficiently establishes that Defendant conducted the affairs of the enterprise, at least in part, 8 through a pattern of racketeering. Specifically, Defendant, who held the high position of Mesa 9 Chapter President of the HAMC (see Slatalla Affidavit at pg. 67), conducted the affairs of the 10 HAMC, at least in part, through the following acts of racketeering: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ( See Slatalla affidavit at pg. 69.) 2/ 27 28 Additional instances of Defendant's conduct can be found in Slatalla's affidavit at pages 67-75. 6
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1. On June 12, 2003, M1 and C1, a registered AFT confidential informant, ran into HAMC member George Walters. Walters advised M1 and C1 that they would be required to travel to Las Vegas, Nevada to assist in protecting a Nevada motorcycle club coalition meeting. Walters told M1 and C1 that they should anticipate being in an armed confrontation and that they should bring their weapons. Walters also stated that Defendant Johnston had sent several
members of the HAMC Mesa charter to the altercation. (See Slatalla affidavit at pg. 75).

2. On July 30, 2002, CW met with Defendant Johnston at Johnston's place of work during which Johnston reiterated to CW that the Solo Angels and its members were guests of the HAMC and had permission to display a certain patch. CW asked Johnston if he could provide him with HAMC contact names and numbers for the purpose of arranging firearms and explosives purchases in the future. Johnston told CW he would get the contact names and numbers. (See Slatalla affidavit at pg. 71) 3. On August 1, 2002, the undercover agents and members of the HAMC traveled to the Spirits Lounge in Gilbert, Arizona. While there, Defendant Johnston advised CW that the Solo Angels were welcome to traffic narcotics in Arizona with HAMC support. (See Slatalla affidavit at pg. 72.) 4. On December 11, 2002, Defendant Johnston met with M1, an ATF undercover special agent, and discussed information he had received about CW, a confidential witness utilized during the investigation. Defendant Johnston told M1 that he (Johnston) could get to the person who owned the firearm that CW was arrested with (and currently incarcerated for) to make sure that this person made it clear to CW's attorney that the firearm was his and not CW. Defendant Johnston also told M1 that he was aware that the Solo Angles Nomad members had been conducting business (referring to criminal firearm and narcotics transactions) with other HAMC members and that they needed to be careful and not conduct too much business too fast.

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Based upon the foregoing, there was clearly sufficient evidence to support a probable cause

2 determination that Defendant Johnston was conducting the affairs of the HAMC enterprise, at 3 least in part, through a pattern of racketeering. Therefore, evidence of association, the existence 4 of the enterprise as well as evidence of racketeering activities would have been seizable. 5 Consequently, even if Defendant had met his burden by making a substantial showing that Agent 6 Slatalla had intentionally or recklessly misrepresented his opinion regarding the illegitimacy of 7 the HAMC, such a misrepresentation would not have been material, as required under Franks, 8 since there was sufficient probable cause to support the issuance of the indicia warrants even 9 without Agent Slatalla's opinion. 10 Defendant Johnston also claims that he is entitled to a Franks hearing because Agent Slatalla

11 omitted information relating to CW's abuse of methamphetamine throughout the investigation 12 and that had this information been included, Magistrate Judge Duncan would have found CW 13 unreliable. Again here, Defendant fails to satisfy his burden so as to warrant a Franks hearing. 14 Specifically, without addressing whether Defendant met his burden of establishing that Agent 15 Slatalla intentionally or recklessly omitted the facts of CW's ongoing drug use from the 16 affidavit, because Defendant fails to establish that the omitted information was material, his 17 request for a Franks hearing must be denied. See U.S. v. Meling, 47 F.3d 1546, 1554 (9th 18 Cir.1995)(Holding that "identifying intentional omissions and misstatements is not enough . . 19 . to require a Franks hearing"). 20 In the present case, even if Agent Slatalla had included the information related to CW's drug

21 use, there was sufficient information contained in the affidavit to justify Magistrate Judge 22 Duncan's probable cause determination. First, Agent Slatalla indicates in his affidavit that 23 while the investigation has relied on the assistance of confidential informants and witnesses, "the 24 information has been corroborated by one or more investigative procedures, including the review 25 of historical police reports, the review of telephone rosters and pen register call and subscriber 26 data, undercover operative activities and observations, physical surveillance, independent 27 informant and/or witness statements, and numerous other investigative techniques." (See 28 Slatalla affidavit at pg. 3). See United States v. Bennett, 219 F.3d 1117, 1125 (9th 7
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1 Cir.2000)(affidavit found to contain probable cause despite omission that informant had been 2 arrested, lied and perjured himself since, among other things, law enforcement had 3 independently verified that he accurately recounted details of the defendant's drug transactions 4 and meetings.); see also United States v. Jones, 801 F.2d 304, 313-14 (8th Cir.1986)(holding that, 5 even though the affidavit failed "to identify all prior bad acts of the informant," the informant's 6 credibility "was demonstrated by the consensually monitored conversations, chemical analysis, 7 and extensive police monitoring"). 8 Secondly, Agent Slatalla's affidavit does not rely exclusively on the information provided

9 by CW in establishing probable cause; rather, there were several sworn law enforcement officers 10 utilized in an undercover capacity during the investigation in the present matter. As is stated in 11 the portion of the affidavit regarding Defendant (see Slatalla affidavit pgs. 67-75), several 12 meetings between Defendant Johnston and other undercover operatives are described. See 13 Bennett, 219 F.3d at 1125 (noting that the finding of probable cause was also based upon 14 testimony from other confidential informants and an undercover officer). 15 Further, the incident referenced by Defendant involving CW's arrest for possessing a large

16 quantity of methamphetamine occurred on September 6, 2002. (See Exh. 3, Def. Johnston's 17 Motion to Suppress). Following CW's arrest, the law enforcement officers participating in this 18 investigation no longer utilized CW as a source of information. 19 Finally, significant to the determination of whether the omission by Agent Slatalla of CW's

20 drug use was material to the determination of probable cause, it was abundantly clear from a 21 reading of the affidavit that CW was a criminal. For example, Agent Slatalla describes a

22 telephone conversation that occurred on December 10, 2002, between M1 and Defendant, 23 wherein the following took place: 24 25 26 [Defendant] Johnston, Jr. asked if M1 has spoken to CW recently. Indicated [sic] that he [Johnston, Jr.] had recently received a telephone call from "inside" [prison] regarding CW. Johnston stated that he had "taken care" of something for CW and apparently CW had been too trusting with the people he was dealing with [criminally] before he was arrested [CW was arrested November 2, 2002].

27 (See Slatalla affidavit at pg. 68)(information contained in brackets included). From this, 28 Magistrate Judge Duncan was fully aware that CW was a criminal. 8
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As such, additional

1 information related to CW's drug use is merely cumulative and not material to the determination 2 of probable cause. For these reasons, it is clear that Defendant fails to satisfy his burden of

3 establishing that the omitted information related to CW's drug use was material to the 4 determination of probable cause in this matter. 5 III. CONCLUSION 6 Defendant's request for a Franks hearing must be denied because he fails to establish that

7 (1) Agent Slatalla intentionally or recklessly misstated the illegitimate nature of the HAMC; (2) 8 Agent Slatalla's opinion that the HAMC is wholly illegitimate is necessary to a determination 9 of probable cause and (3) Agent Slatalla's omission of information related to CW's ongoing drug 10 use is material to the determination of probable cause. For these reasons, the United States 11 respectfully requests that this Court deny Defendant's Motion to Suppress. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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1 I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Keith Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28 10
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