Free Reply to Response - District Court of Arizona - Arizona

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston Jr. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167 PHX-DGC DEFENDANT'S REPLY TO GOVERNMENT'S RESPONSE TO MOTION TO DISMISS RE: LOST AND/OR DESTROYED EVIDENCE

COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby submits his Reply to the Government's Response to his Motion. The Unites States indicates in its Response that it will produce the handwritten notes of CI-790, six weeks before trial and that the items are referenced in its Notice Regarding the Documents to Be Disclosed At A Later Time, hereinafter "Notice" [852]. In that Notice, the handwritten notes of CI-790 are not specifically referenced and the specific dates referenced by Mr. Johnston are not included in that list. A review of the government's Notice [852] shows that the items he requested are not specifically listed as notes of CI-790 for the requested date or

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they simply fail to reference a date at all. Some of the items list dates, but not which CI is responsible for them and still others do not give the date to which they refer. The defendant is simply left to guess or make assumptions in the preparation of his case and his substantive Motions. However, it should be presumed that these items have been lost or destroyed; otherwise they would have been listed. Mr. Johnston has requested the handwritten notes from two specific dates. The first was July 13, 2002 and the other is July 30, 2002. On both of these dates, as explained in detail in Mr. Johnston's Motion, Rudy Kramer made handwritten notes on a notebook. This was confirmed by others who witnessed him doing this. However, neither of these dates is listed by the government with regard to items they are turning over prior to trial. It is interesting to note that the government does not dispute or object to Mr. Johnston's legal argument and proposed remedy. In other words, absent an objection to the legal argument and proposed remedy, the government agrees that if these items have been lost or destroyed, dismissal is the appropriate remedy. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988); United States v. Cooper, 983 F2d 928, 931 (9th Cir. 1993); United States v. Carrasco, 537 F2d 372, 377 (9th Cir. 1976). Mr. Johnston gave a detailed analysis of the materiality of the requested items in his Motion. Nevertheless, Brady and its progeny establish as a matter of due process, that the government is required to turn over evidence in its possession that is material to the Mr. Johnston's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). It is axiomatic that impeachment material is included under the provisions of Brady and Giglio. Mr. Johnston is denied due process when the

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government has failed to preserve evidence that had exculpatory value. Arizona v. Youngblood, 488 U.S. 51 (1988). The appropriate remedy is dismissal. Id.

RESPECTFULLY SUBMITTED this 10th day of January, 2006.

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

COPY of the foregoing electronically mailed this 11th day of January, 2006, to: Tim Duax Keith Vercauteren Asst. U.S. Attorneys All Defense Counsel /s/

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