Free Response to Motion - District Court of Arizona - Arizona

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

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 03-1167-001-PHX-DGC Plaintiff, v. Robert J. Johnston, Jr., Defendant. RESPONSE TO DEFENDANT'S MOTION TO DISMISS RE: LOST AND/OR DESTROYED EVIDENCE

The United States, through counsel undersigned, hereby responds to defendant ROBERT

15 J. JOHNSTON, JR.'s Motion to Dismiss Re: Lost and/or Destroyed Evidence. Defendant 16 JOHNSTON contends that notes taken by Rudolf Kramer during this investigation were 17 destroyed, and therefore, he should be granted a dismissal of the case. Defendant goes into 18 conversations he had with the previous AUSA Michael Kemp regarding these notes. However, 19 defendant neglects to include discussions undersigned counsel has had with the defense and this 20 Court regarding this issue. 21 First, and foremost, the United States has the notes written by CI 790 in this case. The

22 defense requested these notes in Matrix items # 439 and 440. (See Attachment A, page 58 of 23 Matrix Revised on 6/27/05). These two Matrix items clearly reflect the defense request for 24 "Handwritten notes provided by CI 790." The United States responded and stated that the 25 Government will produce these reports 6 weeks before trial. Additionally, the United States has 26 included these notes in the list of discovery that will be delivered with the six week material. 27 This issue regarding the notes of CI 790 was also discussed on the record by the Court via

28 Matrix #439 and 440. (See Attachment B, Transcript from July 8, 2005, page 78, lines 13-16).

Case 2:03-cr-01167-DGC

Document 1018

Filed 01/03/2006

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1 When the Court talked about Matrix #439 and 440, no defense counsel for any defendant said 2 a word about the notes of CI 790 not being available. This Court specifically told the defendants 3 that they needed to make a showing of materiality in order to obtain them. 4 Lastly, in the Matrix Revised on 10/18/05, the same request was made by the defense for

5 the notes of CI 790 in Matrix items # 439 and 440. (See Attachment C, page 78 of Matrix 6 Revised on 10/18/05). In this Matrix entry, it notes that the defense will address these items in 7 a memo regarding the Timing of Disclosure. This Matrix also clearly listed that a Protective 8 Order has been granted for these two Matrix items, and the full disclosure of documents will be 9 before the trial date by court established schedule, to follow. 10 Accordingly, the United States requests that defendant JOHNSTON's Motion to Dismiss

11 Re: Lost and/or Destroyed Evidence be denied. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2 Case 2:03-cr-01167-DGC Document 1018 Filed 01/03/2006 Page 2 of 3

Respectfully submitted this 3rd day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH VERCAUTEREN Assistant United States Attorney

1 I hereby certify that on January 3, 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 Vercauteren 23 24 25 26 27 28
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