Free Memorandum - 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 Arizona State Bar No. 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Robert J. Johnston, et al. Defendants. The United States of America, by and through counsel undersigned, hereby submits this GOVERNMENT'S MEMORANDUM REGARDING JURY TRIAL No. CR-03-1167-PHX-DGC

15 Memorandum addressing specific issues concerning the jury trial in the above-entitled matter 16 pursuant to the Court's order filed October 25, 2005. 17 There are still currently 13 defendants at this time facing trial. Of the 16 defendants charged 18 in the Second Superseding Indictment, defendants Paul Eischeid and George Walters are 19 fugitives and defendant Douglas Dam has entered into a plea agreement. The Government has 20 determine not to seek the death penalty and notified the Court of this fact by filing a Notice Not 21 to Seek the Death Penalty on February 2, 2005. The Government further responds to the Court's 22 order as follows: 23 24 1. The Expected Length of the Trial The Government believes that the trial in this manner will last approximately 12 - 16 weeks,

25 excluding jury selection. As the Court is aware, these estimations depend largely upon the 26 length of cross-examination by defense counsel and the extent to which the defendants are 27 willing to stipulate to the admissibility of certain evidentiary items. It is unclear at this point 28 whether or not two or three defense attorneys would be appointed as primary counsel to cross-

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1 examine Government witnesses.1 2 The Government believes that jury selection in this case will take approximately three days.

3 The Government will request the utilization of a jury questionnaire to explore issues regarding 4 whether or not jurors have been exposed to pretrial publicity, prospective juror's opinions and 5 views concerning the Hells Angels Motorcycle Club ("HAMC") and other relevant areas of 6 inquiry. The United States has reviewed this Court's proposal for jury selection pursuant to this 7 Court's Order dated November 9, 2005. The United States has no objection to this proposed jury 8 selection process. 9 10 2. The Likely Number of Witnesses to Testify at Trial The Government believes that there will be approximately 100 to 125 witnesses called at

11 trial. This number includes at least 18 expert witnesses whose identities and areas of expertise 12 have been identified in the Notice of Expert Witnesses filed on January 21, 2005. This witness 13 list can be reduced with stipulations from defense counsel, for example, chain of custody, 14 agents/finders at search warrants, Drug Enforcement Administration experts, custodians of 15 records, etc. 16 17 3. The Specific Location for Trial There is only one location in the federal courthouse that can accommodate this number of

18 defendants, namely the Special Proceedings Courtroom. Of the remaining defendants, four are 19 in custody and security measures would need to be explored with the U.S. Marshal's Office. It 20 does not appear that Your Honor's courtroom has sufficient space to accommodate this number 21 of defendants, and the Government is unaware of any other facility other than the Special 22 Proceedings Courtroom that can accommodate this number of defendants. 23 24 4. Specific Additional Procedures if the Government Seeks the Death Penalty The Government has determine not to seek the death penalty and notified the Court of this

25 fact by filing a Notice Not to Seek the Death Penalty on February 2, 2005. 26 The Government estimates it will have between 300 and 500 exhibits at trial, including 27 approximately 40 - 50 drug exhibits, 100 firearms, and 200 - 300 other items. 28
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5. Any Bruton, Crawford or Similar Confrontation Issues The Government does not believe there will be any Bruton or Crawford confrontation issues

3 in this case regarding statements to law enforcement officers directly. None of the defendants 4 charged in the Second Superseding Indictment made any post-arrest statements to law 5 enforcement. However, there were also some audio taped conversations with a Confidential 6 Informant and some of the defendants. The United States believes these statements will be 7 introduced as (1) a statement by a party opponent pursuant to Rule 801(d)(2)(A) of the Federal 8 Rules of Evidence, (2) a statement against interest pursuant to Rule 804(b)(3) of the Federal 9 Rules of Evidence, or (3) a co-conspirator's statement in furtherance of the conspiracy pursuant 10 to Rule 801(d)(2)(E) of the Federal Rules of Evidence. The United States believes there may 11 be a Bruton issue and that some of the audio taped statements and transcripts may need to be 12 sanitized. 13 14 6. The Possibility of Severing the Trial As the Court is aware, the Government does not want any of the current thirteen (13)

15 defendants or forty-three (43) counts alleged in the Second Superseding Indictment to be 16 severed. The Government believes that the same basic evidence will need to be introduced 17 against all of the defendants in all of the counts since the Government must prove that the 18 HAMC is an enterprise and that the racketeering acts and acts of violence alleged throughout the 19 Second Superseding Indictment were made in furtherance of the HAMC. Severing this case into 20 several groups would significantly increase the amount of time that this Court will have to invest 21 in trial. 22 Rule 8(b) of the Federal Rules of Criminal Procedure is to be construed liberally in favor

23 of joinder. United States v. Sanchez-Lopez, 879 F2d 541, 551 (9th Cir. 1989). Co-defendants 24 jointly charged are, prima facie, to be jointly tried. United States v. Doe, 655 F.2d 920, 926 (9th 25 Cir. 1980). Rule 14 of the Federal Rules of Criminal Procedure discusses when joinder may 26 prejudice the defendant. It is significant that the rule is silent as to the length of the trial or other 27 practical concerns relating to a multi-defendant, time consuming trial like the present case. 28 Further, Ninth Circuit case law has consistently discussed the value of diligent instruction by the
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1 trial judge to assist the jury in compartmentalizing the evidence against each defendant. A 2 district court should grant a severance under Rule 14 only if there is a serious risk that a joint 3 trial would compromise a specific trial right of one of the defendants or prevent the jury from 4 making a reliable judgment about guilt or innocence. Zafiro v. United States, 113 S. Ct. 933, 5 938 (1993). 6 In the Court's order of November 4, 2004, the Court directed undersigned counsel to discuss

7 United States v. Baker, 10 F3d 1374 (9th Cir. 1993). In Baker, the Ninth Circuit upheld a district 8 court's refusal to sever the trial of 15 defendants on various drug charges. Baker, 10 F.3d at 9 1389. The trial in Baker lasted over 16 months, involved over 250 witnesses, thousands of 10 exhibits, and the Government presented evidence involving over 2000 narcotics transactions 11 over an 11-year period. Baker, 10 F3d at 1386. 12 Specifically, the Ninth Circuit in Baker discussed a number of factors in determining

13 whether a joint trial involving a significant number of defendants and a significant amount of 14 evidence should remain joined for trial. First, the Ninth Circuit addressed the issue of judicial 15 economy and stated in the Baker case that separate trials would have ultimately resulted in 16 taking less time than the 16 months needed for the joint trial. In this case, the opposite is true. 17 This case involves allegations of Racketeer Influenced and Corrupt Organizations ("RICO") and 18 Violent Crimes in Aid of Racketeering ("VICAR"). All the defendants in all of the counts are 19 charged with either RICO or VICAR. Both RICO and VICAR require proof that an enterprise, 20 the HAMC, exists and that the various criminal activities alleged in the indictment were 21 committed in furtherance of the HAMC. In separate trials, all of this evidence would have to 22 be presented repeatedly, including significant expert testimony regarding the nature, scope and 23 inner workings of the HAMC. In a joint trial, this evidence would be presented once. 24 The Ninth Circuit in Baker also discussed avoiding inconsistent verdicts. This does not

25 seem to be a major concern for the Government since the jury will be properly instructed 26 regarding separate evidence against separate defendants which needs to be considered 27 separately, and the possibility of acquitting some defendants on separate criminal acts does not 28 appear to be a major concern. This factor does not appear to cut for, or against, severance.
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Finally, the Ninth Circuit discussed the potential problem for the Government that witnesses

2 who testify in an early severed trial may be intimidated or otherwise prevented from testifying 3 again. The Ninth Circuit pointed out that the defendants knew the identity of most of the 4 Government witnesses far in advance of trial and could have prevented them from testifying in 5 the beginning.2 The Court concluded by imploring future judges to determine this issue on a 6 case-by-case basis. Baker, 10 F.3d at 1390. In this case, there is a significant concern for 7 cooperating witnesses and government agents who will testify. A number of government 8 witnesses have been relocated and secured by government agents. There will be additional 9 security necessary at the courthouse when cooperating witnesses and informants testify, as well 10 as government agents. The expense involved with the security will have to be repeated at 11 separate trials. The HAMC has a long history of witness intimidation, and one of the allegations 12 in the Second Superseding Indictment is the tampering with a cooperating government witness. 13 Severing this trial will greatly exacerbate these problems and increase the financial burden to 14 the judicial system. 15 The Ninth Circuit also raised several other concerns. There is a tremendous burden on the

16 attorneys to be involved in a lengthy trial. However, the Government believes that all of the 17 trials will be of similar length in light of the proof required for evidence of the enterprise and the 18 inner workings of the HAMC. Second, the Court pointed out the imposition upon the jury. 19 Again, severing the trials in this case will place a greater burden on the federal jury pool since 20 there will have to be two or three juries rather than just one jury. One jury for one trial may have 21 to serve a little longer than two or three juries in separate trials, but the proportionate burden is 22 less with one trial. Third, the burden on the Court is also recognized. Again, this burden will 23 be lessened by one trial rather than two or three for the reasons outlined above. Finally, one 24 appeal from one trial will be more easily managed than two or three appeals for two or three 25 trials. 26 27 28 As the Court is aware, the Government has not officially disclosed the identity of any cooperating witnesses, informants or undercover agents.
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The Ninth Circuit stated in Baker that the judge should require the prosecution to justify its

1 position for a joint trial when the estimate for the trial exceeds four months. In this case, the 2 United States estimates that the trial will last less three to four months. Second, there would be 3 more than ten defendants involved. There are currently 13 defendants, and the Government 4 believes there is a chance that some of these defendants may plead guilty. Finally, the 5 Government does not consider any of the defendants "peripheral defendants" so as to limit the 6 prosecution's scope. Therefore, there is not an issue addressed in Baker wherein a peripheral 7 defendant sat there 16 months with only a few days devoted to evidence relating to him. Baker, 8 10 F.3d at 1391. All of the defendants are alleged to have been in the HAMC enterprise and 9 committed the criminal acts alleged in furtherance of the HAMC. 10 It should be noted that the Ninth Circuit in Baker also pointed out that the nature of the

11 evidence and legal concepts involved in that case were not extraordinarily difficult to 12 comprehend as in a complex anti-trust case and that drug manufacturing and distribution, even 13 on a large scale such as the one in Baker, is not beyond the competence of the ordinary juror. 14 Baker, 10 F.3d at 1388. This case does not involve complex legal issues. The indictment alleges 15 various gun violations, drug transactions and acts of violence. Further, this case will not last 16 even one-fourth of the time taken in the Baker case, will have less than half of the witnesses, and 17 this case will involve far fewer narcotics transactions over a much shorter time span. 18 With regard to the specific issues addressed in the Court's footnote on page four of its

19 November 4, 2004, order, it appears obvious that Counts 1 and 2 should remain together. A trial 20 involving Counts 1 and 2 would involve nine defendants (provided that defendants Eischeid and 21 Walters are not captured prior to trial), as well as the other counts pertaining to those nine 22 defendants, including gun counts, drug transactions and acts of violence. Any severance in this 23 case would clearly require counts one and two to remain together since there are not any other 24 Bruton or Crawford problems (if sanitized) and all of the defendants are relatively equally 25 culpable. Second, the issue of severing the death eligible defendants is no longer applicable 26 since that decision has been made by the Department of Justice not to seek the death penalty. 27 Third, the Government believes that the defendants in Counts 1 and 2 should clearly remain 28 together regardless of any other severance issues.
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The Government emphasizes that the above proposed severance scenarios are at the request

2 of the Court and the Government strongly opposes any severance whatsoever in this case. 3 Separate trials will greatly increase the time devoted in trial to this case, increase costs for 4 security and juror participation, and thereafter the continuing cooperation and future appearance 5 of the Government witnesses. Two or three separate trials will result in a total allotment of many 6 more court days in trial than one consolidated trial will accomplish. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 14th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

s/ Keith E. Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

1 I hereby certify that on December 14, 2005, 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 E. Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28
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