Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert J. Johnston (1); and Donald C. Smith (2), et al., Defendants.

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CR-03-1167-PHX-DGC ORDER

Defendant Robert Johnston has filed a M otion t o D is miss re: Failure to Comply with 16 Disclosure Obligations. 17 Doc. #931. 18 replied. 19 the thirteenth case management conference held on January 19, 2006. Doc. #1104. 20 I. 21 Defendants Johnston and Smith ask the Court to dismiss the indictment in an 22 exercise of the Court's supervisory powers. See Doc. #930 at 15-16. "A Court may exercise 23 its supervisory power to dismiss an indictment in response to outrageous government 24 conduct that falls short of a due process violation." United States v. Ross, 372 F.3d 1097, 25 1109 (9th Cir. 2004); see United States v. Fernandez, 388 F.3d 1099, 1239 (9th Cir. 2004). 26 Such a dis mis s al "is an extreme sanction which should be infrequently utilized." United 27 States v. Owen, 580 F .2d 365, 367 (9th Cir. 1978); see United States v. Simpson, 972 F.2d 28 Legal and Factual Background. D oc. #1111. Counsel for Johnston and the Government addressed the motion at The Government has filed a response. Doc. #985. Defendant Johnston has Doc. #930. Defendant Donald Smith has joined the motion.

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1088, 1091 (9th Cir. 1991).

The analysis involves two components:

"prosecutorial

misconduct must (1) be flagrant and (2) cause `substantial prejudice' to the defendant." Ross, 372 F.3d at 1010 (citation omitted); see Fernandez , 388 F.3d at 1239; Fed. R. Crim. P. 52(a); Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56 (1988). Before addressing the specific Government omissions alleged by Defendant Johnston, the Court must address the breadt h of his overall argument. The charges in this case relate to the Hells Angels M otorcycle Club ("HAM C"). Proceedings in this case have made clear t hat t he HAM C has been the subject of criminal investigations by a number of federal, state, and local law enforcement agencies, including agencies in Arizona, Nevada, and California. These investigations have spawned a number of criminal prosecutions in

addition to this case, including prosecutions in the state and federal courts of Arizona and Nevada. In support of his motion, Defendant Johnston quotes stat ement s made by Government agents in other cases. cases and this p ros ecut ion. He does not explain the relationship bet ween those

He does not identify the charges brought in those cases,

when they were asserted, or how they w ere res olved. Rather, Johnston seems to assume that any investigat ion of the HAM C that had any connection to this case must be disclosed. Rule 16 of the Federal Rules of Criminal Procedure, however, is not so broad. Rule 16 sets forth specific categories of information that mus t be dis closed by the Government. See Fed. R. Crim. P. 16(a)(1)-(3). These categories of information are

exceptions to the general rule that Defendants are not entitled to conduct discovery in criminal cases. See generally Doc. #702 (5/23/05 Order). Thus, Defendant Johnston cannot establish a violation of the Government's disclosure obligation, much less flagrant prosecutorial misconduct, simply by noting that evidence generat ed in another case and that has some plausible connection to this case has not been disclosed. Defendant J ohns t on must show that the Government was required to produce informat ion under Rule 16, knew of this obligation, flagrantly failed to comply,
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and thereby caused substantial prejudice to Defendants. Ross, 372 F.3d at 1010.

See Fed. R. Crim. P. 16(a)(1);

Defendant J ohns t on's motion does not identify the provision of Rule 16 under which he contends the Government was required to disclose information. It is evident from his motion, how ever, t hat he is relying on Rule 16(a)(1)(E)(i) because he refers repeatedly to information material to the preparation of his defense. Rule 16(a)(1)(E)(i) requires the

Government to disclose documents and objects within its possession, custody or cont rol that are "material to preparing the defense." To obtain discovery of information under this provision, however, Defendants must "make a threshold showing of materiality, which requires a presentation of `facts which would tend to show that the G overnment is in possession of information helpful to the defense.'" United States v . Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (quoting United States v. Mandell, 914 F.2d 1215, 1219 (9th Cir. 1990)). It is not sufficient for a defendant s imp ly to request a broad category of documents. "A general description of the material sought or a conclusory argument as to their materiality is insufficient to satisfy the requirements of [Rule 16(a)(1)(E)(i)]." United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984); see Santiago, 46 F.3d at 894. Defendant Johnston's motion does not addres s the requirement that he make an initial showing of materiality. The Court has addressed some of Defendant s ' effort s to

make the showing in this case (see Doc. #844) and will address Defendant Johnston's arguments on the basis of that familiarity. II. S pecific Alleged Omissions. D efendant Johnston identifies nine omissions in the Government's disclosures . Defendant Smith adds a tenth. The Court will address these in turn. A. Murders. A gent Joseph Slatella, an agent directly

Defendant Johnston contends that

involved in the investigation of this case, provided an interview in mid-2004 in the case of State v. Coffelt, No. CR2003-01727-5-001, pending in M aricopa County Superior Court. Johnston does not describe the nature of the Coffelt case or its relationship to this case.
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Johnston quotes Agent Slatella's statement that there were several unsolved homicides investigated in connection with the HAM C. Johnston asserts that information concerning

these investigations has never been disclosed in this case. The allegations in t his case include the alleged murder of Cynthia Garcia by HAM C members. Defendant Johnston does not assert that the Government has withheld Rat her, Johnston argues that the Government has failed

information related to this murder.

to produce information concerning other murder investigations mentioned in Agent Slatella's interview. Defendant Johnston does not explain when or how he satisfied the showing required by Rule 16(a)(1)(E)(i) with res p ect to these investigations. He does suggests that these investigations may reflect violence between the HAM C and the M ongols and thereby provide an explanat ion as to why HAM C members carry firearms. He also argues that the investigations "could also be presented in the context of the Laughlin incident in relation to violent acts committed by the M ongols." Doc. #1111 at 3. As noted above,

however, conclusory allegations of materiality will not suffice. In the absence of a showing of specific facts establishing materiality, the Government does not have a disclosure obligation under Rule 16(a)(1)(E)(i). See Santiago, 46 F.3d at 894, Cadet, 727 F.2d at 1468. The Government has a constitutional obligation, independent of Rule 16, to disclose material exculpatory information without request from Defendants. See Brady v. Maryland, 373 U.S. 83 (1963); see also Giglio v. United States, 405 U.S. 150 (1972); Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997) ("The prosecution is obligated by the requirements of due process to disclose material exculpatory evidence on it s own motion, without request."). Disclosures under Brady, however, need only be made in time for

Defendants t o us e t he information effectively at trial. See United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995). T he Court has ordered the Government to disclose withheld Brady mat erial by February 24 or M arch 10, 2006. See Doc. #1012 ¶ 9. The Government's failure to disclose such information at an earlier date cannot be characterized as flagrant misconduct.
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B.

Minutes.

In the same 2004 interview in the Coffelt case, Agent Slatella stated that he had been told that minutes obtained from HAM C meetings reflected criminal activity. Agent Slatella apparently had not seen the minutes himself, but said he was aware that criminal discussions were reflected in them. On the basis of this assertion, Defendant Johnston

argues that the Government has wrongfully withheld minutes of HAM C meetings. Again, how ever, Johnston does not explain the connection between the Coffelt case and this cas e. He does not attempt to demonstrate how the minutes referred to by Agent

Slatella are relevant to this p ros ecut ion. Nor does he explain when and how he made the Rule 16(a)(1)(E)(i) showing necessary to trigger the Government's disclosure obligation. The Government asserts that all minutes of HAM C meetings were p roduced to Defendants on M arch 1, 2004 and were made available for inspection by defense counsel in April of 2004. See D oc. #1085. Defendant Johnston disagrees, asserting that no minutes reflecting criminal activity have been p roduced. He asserts that either the documents exist

and must be produced or the Government " mus t s t ate that the agent embellished and fabricated." See Doc. #1111 at 3. The issue rais ed by Defendant Johnston's motion, and the question to be answered in this order, however, is whether the Government's indict ment should be dismissed. It is not to determine w het her Agent Slatella spoke truthfully when he provided an interview in anot her case. The Court cannot conclude that Defendant Johnston has show n t he

Government acted flagrantly in failing to produce additional H A M C meeting minutes. Nor can t he Court conclude that Johnston has been prejudiced by not receiving minutes that reflect criminal activity on the part of the HAM C. Obviously, if the Government seeks to introduce minutes at trial that were not previously disclosed to Defendants, objections by the defense will likely be sustained. See Rule 16(a)(1)(E)(ii). C. Bank Records. Agent

This issue is essentially the same as the dispute over HAM C minut es.

Slatella stated in the Coffelt interview that bank records show the proceeds of illegal sales
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of guns or drugs.

D efendant Johnston asserts that no such records have been produced.

The Government claims that all bank records were produced on M arch 1, 2004 and made available for inspection by defense counsel in April, 2004. A s with the minutes discussed If the Government

above, t he Court cannot conclude that this issue warrants dismissal.

seeks to introduce bank records at trial that were not previously disclosed to Defendants, an objection from the defense will likely be sustained. See Rule 16(a)(1)(E)(ii). D. Methamphetamine.

During the Coffelt interview, Agent Slatella stated his opinion that the HAM C has substantial control of a methamp hetamine market in Arizona. Defendant Johnston asserts

t hat no evidence to support such a claim has been produced and that the levels of methamphetamine at issue in the indictment are small. Johnston argues that yet another criminal case ­ the Pancrazi matter ­ resulted in a conclusion that HAM C members purchased "mostly small quantities of personal use methamphetamine." Doc. #930 at 10. The Court could see the relevance of informat ion supporting Agent Slatella's opinion if that opinion had been embodied in the criminal charges in this case. As

Defendant Johnston himself not es , however, the indictment alleges only relatively small methamphetamine transactions. Johnston does not specify the evidence that allegedly has

been withheld by the Government, nor does he explain when and how he made the showing required by Rule 16(a)(1)(E)(i). He does not claim, of course, that evidence

showing substantial HAM C control of the methamphetamine trade would be exculp atory under Brady. Thus, the Court cannot conclude that the Government has withheld

information it was obligated to disclose, or that any such withholding was flagrant. E. S urveillance Videos.

Defendant Johnston quotes an interview of Detective Sarasarus of the Glendale Police Department, apparently also taken in the Coffelt case. See Doc. #930, Ex. 4.

Detective Sarasarus states in the interview t hat t he ATF, with which he was affiliated in the investigation, conducted video and audio surveillance of undercover law enforcement officers inves t igat ing t he HAM C. When asked to confirm that there are hundreds of
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videot apes of such surveillance, Detective Sarasarus says "[m]ore or less, yeah." Id. at 12. Defendant Johnston notes that hundreds of surveillance videot apes have not been produced. In response, the Government assert s t hat Detective Sarasarus (the Government refers to him as "Agent Sus uras") did not refer to hundreds of videotapes, but instead referred to hundreds of audio tapes and s ome videotapes. Doc. #1085. But this is not what Detective Sarasarus said, according to the transcript provided by Defendant Johns t on. The Detective clearly seemed t o confirm that there were hundreds of videotapes and hundreds of audio tapes. See Doc. #930 at 12. The Court has previously concluded that Defendants made a sufficient showing to require production of surveillance information relat ed t o t his case under Rule 16(a)(1)(E)(i). See Doc. #844 at 3. D efendant Johnston does not explain the basis for knowing that the

videotapes described by Detective Sarasarus, if they exist, are related to this case, but he does assert that Detective Sarasarus reported directly to Agent Slat ella as part of the HAM C investigation. Although the Court cannot conclude on the basis of these assertions that the Government has acted flagrantly to the substantial prejudice of Defendants, Defendant Johnston's assertion has raised a genuine issue concerning the Government 's disclosures in this cas e. T he Court will require the Government to present Detective Sarasarus for

direct testimony and cross-examination by either counsel for Defendant J ohnston or Defendant Smith on February 9, 2006. Detective Sarasarus s hould be prepared to testify at 9:00 a.m. that day. The scope of the testimony will be limited to Detective Sarasarus's assertion in the Coffelt interview that hundreds of surveillance videotapes were made of undercover officers investigating the HAM C. The purpose of the hearing will be to inquire into the G overnment's assertion that Detective Sarasarus was mistaken in the Coffelt interview and that no such videotapes exist. F. S urveillance Logs.

Defendant Johnston reads Detective Sarasarus's interview as suggesting that he
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maintained surveillance logs

regarding the activities of undercover officers.

The

Government disagrees, asserting that D et ect ive Sarasarus was referring to operation plans that are purportedly protected from discovery under Rule 16(a)(2). Because there appears to be ambiguity on this issue, and because Detective Sarasarus will be present to t es t ify before t he Court on February 9, 2006, the Court will permit inquiry into this subject as well. G. S mith Residence Videotape.

Defendant Johnston asserts that an ATF agent testified in a case entitled United States v. Acosta that the search of Defendant Donald Smith's residence was videotaped. Defendant Johnston does not exp lain the nature of the Acosta case, identify the court in which it is pending, or explain w hy it is related to this case. Assuming the search at issue is the same search that was conducted at the beginning of this case, how ever, a videotape of the search clearly would be material. The G overnment denies that any videotape exists. It asserts that still digital The Government asserts

photographs were taken during the search of the Smith residence.

t hat A gent Andrew Worrell, apparently the agent who testified in the Acosta hearing, w as mistaken if he testified that a videotape was made. In reply, Defendant Johnston asserts

that the transcript from the Acosta hearing includes three pages of testimony about the videotape. (Defendants have not provided the Court with a copy of the transcript.) Because a videotape of the Smith residence search would be material in this case, and because the Government is asserting that Agent Worrell was simply mistaken if he testified that a videotape was made, t he Court will require Agent Worrell to appear at the hearing on February 9, 2006 to respond to questions about the existence of the videotape. Agent Worrell should be prepared to testify at 9:00 a.m. T he ques t ioning of Agent

Worrell will be limited to the creation, existence, and location of the alleged videotape of the Smith residence search. H. Johnston Residence Videotape.

Defendant Johnston as s erts that the search of his residence was also videotaped and that the videotape has never been produced.
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In response, the Government as s erts

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that it init ially believed the videotape was blank due to operator error. Upon subsequent inquiry, it discovered that the videotape could be viewed on an analog machine. videotape has been produced to Defendant Johnston. The

It apparently is five minutes in

length and, according to Defendant Johnston's reply, is useful and exculpatory. The Court will not dismiss the charges agains t D efendant Johnston on the basis of the Government's late disclosure of the videot ape. As noted above, dismissal requires not only flagrant conduct but substantial prejudice to the defendant. 1039. Fernandez, 388 F.3d at

Since D efendant Johnston has found the videotape to be helpful and exculpatory,

and received the five-minute tap e more t han three months before trial, the Court cannot conclude that Johnston has been substantially prejudiced. I. S chaefer Residence Videotape.

Defendant Johns ton asserts that the search of Defendant Calvin Schaefer's residence was also videotaped and that the tape has never been produced. The

Government asserts that the videotape was produced to Defendants on October 25, 2004. Defendant Johnston does not contest this fact in his reply brief. J. Timing of the Investigation.

In his joinder, Defendant Smith notes that Detective Sarasarus stated in the Coffelt interview that he had been involved in the HAM C investigation since July of 2001. Defendant Smith asserts that the Government has never dis closed any investigation material created before December, 2001. In response, the Government asserts again that Detective Sarasarus made an error. The Government asserts that he joined the investigation in J uly of 2002, not 2001. Because Detective Sarasarus will be appearing at the February 9, 2006 hearing to addres s t he issues set forth above, t he Court will permit inquiry into this subject as well. The scope of the inquiry will be the date on which Agent Sarasarus joined the invest igat ion of t he HAM C. III. Conclusion. The Court concludes t hat D efendants Johnston and Smith have not made the showing required for dismissal of this case under t he Court's supervisory powers.
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They

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have not shown that the Government's conduct was both flagrant and substantially prejudicial. IT IS ORDERED: 1. Defendant Johnston's M otion to Dismiss re: Failure to Comply with

Disclosure Obligations (Doc. #930), w hich Defendant Smith has joined (Doc. #931), is denied. 2. Detective Sarasarus shall ap p ear on February 9, 2006, at 9:00 a.m. to testify

to the matters set forth above. 3. Agent Worrell shall appear on February 9, 2006, at 9:00 a.m. to test ify to the

matters set forth above. 4. Examination of Detective Sarasarus and Agent Worrell will be permit ted by

one counsel for the Government and either counsel for Defendant Johnston or counsel for Defendant Smith. DATED this 31st day of January, 2006.

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