Free Motion for Reconsideration - District Court of Arizona - Arizona

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Brian F. Russo, Esq. AZ Bar No. 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 MOTION TO RECONSIDER AND NOTICE OF ADDITIONAL FACTS RE: MOTION TO DISMISS FOR FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS

COMES NOW the defendant Robert Johnston, by and through counsel, Brian F. Russo, and on behalf of all other defendants and hereby moves this honorable Court to Reconsider its order denying defendant's Motion. Defendant further gives Notice of additional facts in support of this Motion. The Court wrote that "Defendant Johnston quotes statements made by Government agents in other cases. He does not explain the relationship between those cases and this prosecution." Docket 1159, p.2, lines 13-15. The defendant apologizes for not explaining in more detail the relationship between the cases. Defendant will provide a detailed factual summary of the interrelatedness of these cases and how they are extensions arising out of our investigation and Agent
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Slatella's affidavit in United States v. Johnston. The material cited in Defendant's Motion [Docket 930] is not from other cases. The interrelationship is that the government chose to prosecute disparate incidents in different ways. However, they all arise out of this investigation and are merely tentacles of this prosecution. As an example, the government indicted several individuals from this investigation in July 2003 and then others in December 2003. Those indicted in July 2003 were prosecuted separately and not as co-defendants in a joined prosecution. Calvin Shaefer, Mark Krupa, Douglas Dam, Andrew Murphy and others were indicted in July 2003 for alleged drug transactions with Agent Dobyns, other UCs and CIs. This was all part of Agent Slatella's affidavit from the instant litigation. Some of these July 2003 indictments were resolved and some were incorporated into this indictment. However, this does not change the fact that they are the same investigation and thus, necessarily related to the instant prosecution. All of the cases in which the agents were interviewed, testified, or were deposed arose out of this investigation. The interviews of Agent Slatella cited in Defendant's Motion [930] arose directly out of his participation in this case. The Coffelt case is related to this case and only arose as a result of Agent Slatella's investigation and search warrant affidavit which lead to the search of the Cave Creek Club House and other locations listed by the Agent in that affidavit. The court requests information concerning the Coffelt case; its relation to this case, the charges brought, when they were asserted and how they were resolved. Docket 1159, p.2, lines 15-18. State of Arizona v. Michael Coffelt arose out of the execution of a search warrant at the Cave Creek charter of the Hells Angels based on the instant litigation, United States v. Robert Johnston. Agent

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Slatella drafted the affidavit in support of the search warrant for this location and all others executed on that date, July 8 ,2003. Agent Slatella drafted the affidavit and secured the search warrant for the Cave Creek club house based on the investigation conducted by Agent Dobyns, Agent Long and the participating CIs during the Johnston case. He coordinated and conducted briefings in preparation of the execution of the search warrants with ATF and other agencies working under the ATF. Agent Slatella's affidavit was 117 pages and was based on the investigation conducted in the Johnston case. On July 8, 2003, ATF along with other law enforcement officials working at the direction of the ATF executed a search warrant at the Cave Creek Club House. Michael Coffelt, a member of the Hells Angels was sleeping at the club house at that time. Law Enforcement had an army present along with assault vehicles for the execution of this warrant. Michael Coffelt was charged with aggravated assault on a police officer for coming to the door with his gun. Maricopa County Superior Court Judge Michael Wilkinson found that the police failed to comply with the knock and announce rule and granted Mr. Coffelt's Motion to Suppress. He stated in his ruling that "it is clear from the evidence, especially the video tape of the entry that at no time was there intent to wait for a response. The plan of attack upon the house, for that indeed was what it was, always assumed that the armored personnel carrier would knock down the fence and advance into the house through the rear arcadia door." Judge Wilkinson further found that "[w]hen Defendant answered the door he came to the door with a gun. This would appear to be reasonable behavior given the hour and the fact that the house was under attack." The state subsequently dismissed the charges and filed an appeal.

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Agent Slatella was questioned by counsel for Coffelt and asked about the affidavit he wrote in the Johnston case. It is clear from reading Agent Slatella's statements cited in Defendant's Motion [930] that he was referring to the Johnston case; he says "I'm referring to this investigation, where there are several unsolved homicides or homicides that are under investigation that are related we believe to the Hells Angels, their members, and their associates. Those homicides were and some are still under investigation." This was in response to a question about what he wrote in the affidavit in United States v. Johnston, in support of search warrants executed on July 8, 2003 at the homes of most of the defendants in this case. The Court states that defendant failed to show specific facts establishing materiality. The defense respectfully disagrees with this for several reasons. Agent Slatella represented to the magistrate that the "murders" are material to his affidavit. Agent Slatella is listed as an expert in our case as well as being the affiant on search warrant applications used in the cases from which the cited interviews were taken. Further, the Court must recognize that the defense has not been provided any evidence of murders despite the government's repeated reference to uncharged violent acts by the HAMC that it intends to introduce at trial. The defense only found out some specific reference about the alleged additional "murder investigations" in the government's response. Even though the defense believes materiality has been shown, it is not logical to assume that the defense is able cite specific facts when it doesn't have any of the evidence from which to cite. The Court also states that if, as defendant has surmised based on the limited knowledge gleaned from the Government's Response, that the material has

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exculpatory value, the government may produce it by February 24, 2006 or March 10, 2006. Docket 1159, p.4, lines 26-28. This is an insufficient and untimely remedy for the defense. The government intentionally did not produce this material and it is apparent that it has no intention of disclosing now or in time for the defense to use effectively at trial. It is only after the defendant fortuitously finds information and brings it to the Court's attention, that the government repeatedly concedes its existence. Throughout the pendency of this proceeding, the government has withheld relevant information from the defense based on its erroneous interpretation of the rules and the law. At the very least, the government should be required to present this evidence to the court in camera so that there is an independent determination of its materiality and relevancy to this proceeding. With regard to the "Minutes, Bank Records and Methamphetamine" topics the same argument applies as with the "Murders." These were all questions asked from statements made by Agent Slatella in his affidavit in United States v. Johnston and have not been produced as part of this case. Obviously the government does not have the evidence and therefore, such evidence could not support the search warrant affidavit made in this case which again, goes to the heart of this entire RICO prosecution. The defense made these same arguments when they discovered the wiretap evidence from the Pancrazi case. The defense showed, once they received some of the materials, that the Pancrazi case involved the same agents, CIs and some of the same defendants that are in United States v. Johnston, despite the government's assertion that it was not related. The government investigated the HAMC under the theory that they are an enterprise. Agent Slatella stated in his affidavit that this was a 19 month

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investigation in to the Hells Angels. Any case charged as a result of this investigation arising out of the search warrants based on affidavits drafted by Agent Slatella for United States v. Johnston is related and material. The defendant respectfully requests that this Court reconsider its order denying the Motion and find that the additional facts set forth in this Memorandum establish the relatedness and materiality as required by the Court. If, however, the Court still has questions about the requested materials, the defendant respectfully suggests that an evidentiary hearing is necessary to make the factual determinations.

RESPECTFULLY SUBMITTED this 3rd day of February, 2006.

/s/ Brian F. Russo Brian F. Russo Attorney for Defendant Copy of the foregoing Electronically mailed this 3rd day of February, 2006, to: Tim Duax Keith Vercauteran Assistant U.S. Attorneys All Defense Counsel /s

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