Free Reply to Response - District Court of Arizona - Arizona

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Brian F. Russo (018594) Attorney at Law 111 W. Monroe St., Ste. 1212 Phoenix, Arizona 85003 (602) 340-1133 Tel (602) 258-9179 Fax Attorney for Defendant Robert Johnston IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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UNITED STATES,

) ) Plaintiff, ) ) ) vs. ) ) ROBERT J. JOHNSTON, JR., ) ) Defendant. ) ___________________________________ )

NO: CR03-1167-1-PHX-DGC

REPLY RE: MOTION TO SUPPRESS

(Oral Argument Requested)

Defendant, by and through counsel undersigned, hereby files his reply with respect to the Motion to Suppress that he previously filed herein. This reply

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is supported by the attached Memorandum of Points and Authorities incorporated by reference herein. RESPECTFULLY SUBMITTED this 30th day of January, 2006.

/s/ Brian F. Russo Brian F. Russo Attorney for Robert Johnston

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MEMORANDUM OF POINTS AND AUTHORITIES

Defendant herein has moved to suppress all evidence obtained as a result of the search of his home pursuant to a search warrant issued by Judge Duncan. Defendant has alleged that ATF Agent Slatella intentionally, knowingly,

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and recklessly misrepresented to Judge Duncan that the Hells Angels are a wholly illegitimate enterprise, that the confidential witness was reliable and that there was some nexus between the items requested in the search warrant and Defendant Johnston's house. These misrepresentations were material to the issuance of the search warrant for the defendant's house. Defendant Johnston has alleged numerous facts and provided supporting documentation to establish Slatella's opinion about the Hells Angels is

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wholly unsupported by any factual basis, that the CW, Rudolph Kramer was a meth addict who Judge Duncan later found to be inherently unreliable and untrustworthy and that the affidavit, when redacted, fails to show that Johnston was involved in any criminal RICO activity and therefore there was no nexus

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between the items sought from his house and the allegations of the affidavit. In response, the government argues that: Defendant's request for a Franks hearing must be denied because he fails to establish that 1) Agent Slatella intentionally or recklessly misstated the illegitimate of the HAMC; 2) Agent Slatella's opinion that the HAMC is wholly illegitimate is necessary to a determine of probable cause; and 3) Agent Slatella's omission

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of information related to CW's ongoing drug use is material to a determination of probable cause. Response at p. 9 Based on the government's response, Defendant Johnston submits that the parties agree on the following matters:

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1. There is no factual basis for Slatella's opinion that such a large portion of the Hells Angels activities are illegitimate that they can be considered, in effect, wholly illegitimate. The government does not dispute Agent Dobbins' testimony that the Hells Angels are an organization whose primary purpose is to enjoy a lifestyle and culture that revolves around motorcycles. The government also does not dispute that only a small number of the 125 members of the HAMC in Arizona are involved in this investigation or are alleged to have engaged in any

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criminal activity. 2. The parties also agree that CW Kramer is an unreliable witness who Judge Duncan later found to be "inherently unreliable and untrustworthy because of his use of methamphetamine". The government does not dispute that

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CW Kramer's drug usage was known to both it and members of the Hells Angels during the course of the investigation. It is also clear that the government concealed the drug use and unreliability of CW Kramer from Judge Duncan.

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In United States v. Gonzales Inc., 412 F.3d 1102 (9th Cir. 2005) the court held that the Defendants had made a requisite showing to warrant a Franks

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hearing. The court stated: To obtain a Franks hearing, Defendants must make a preliminary showing that the wiretap applications contained material misrepresentations or omissions. (cites omitted) The defense filed 100 pages of attachments to support its claims of misrepresentations and omissions in the wiretap affidavits. ..... The District Court correctly determined that the defense adequately plead that the misrepresentations and omissions were made with the requisite state of mind. Our case law does not require clear proof of deliberate or reckless omissions or misrepresentations at the pleading stage. (cite omitted) Instead, at this stage, we simply require the defense to make a substantial showing that supports a finding of intent or recklessness. Given the affiant's key role in the investigation, we can conclude that he knew or should have known the veracity of the challenged statements in his affidavit because these statements all concern the potential of traditional investigative techniques to gather information on the role any individuals at the Blake office played in the alleged conspiracy. There is no question that Slatella misrepresented and/or concealed significant facts concerning the basis for his opinions about the HAMC and the

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reliability of CW Kramer as a witness. The government does not contend otherwise. Slatella played a key role in the investigation and therefore the Defendant has met his burden to show material misrepresentations and the requisite mental state of the affiant.

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Despite the significant misrepresentations and omissions set forth above, the government claims that Agent Slatella's affidavit "sufficiently

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establishes that Defendant conducted the affairs of the enterprise, at least in part, through a pattern of racketeering." It goes on to state four allegations in the affidavit to support this argument. 1. A Hells Angels member alleged that the Defendant sent several

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members of the HAMC Mesa Charter to a motorcycle club coalition meeting in Nevada. It does not allege that any RICO activity occurred at this coalition club meeting, that any altercation occurred or even that any criminal activity at all occurred. It also fails to acknowledge that several HAMC members had been

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killed at the Laughlin incident in 2002 and that the president of the Cave Creek Charter had been murdered approximately 3 months before this meeting. Assuming that members were sent for "protection" as the government alleges, the need for protection was well founded. 2. The government next alleges a conversation occurred on July 30, 2002 between CW Kramer and Johnston. Of course, CW Kramer is an inherently unreliable and untrustworthy witness and this allegation must be stricken from the

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affidavit unless it is supported by a tape recording or collaboration from a credible witness. However, the government does not allege that there is any tape recording of this meeting or that a credible witness heard what was reported by CW Kramer.

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3. The government alleges that on August 1, 2002 CW Kramer alleged that Johnson advised him that the Solo Angels were welcome to traffic

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narcotics in Arizona with HAMC support. Again, this is nothing more than the blustering of a meth addicted unreliable witness. There is no tape recording or collaborating evidence that would support this allegation and therefore it must be stricken from the affidavit.

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4. The government alleges that on December 11, 2002 Defendant Johnston spoke with ATF undercover agents that he could "get to the person who owned the firearm that CW was arrested with to make sure that this person made it clear to CW's attorney that the firearm was his and not CW." Having a witness tell

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the truth to a defense attorney with the idea that it may help a supposed friend out of his legal problems is hardly RICO activity. It is difficult to see how this conversation would support probable cause in this instance. In the same conversation the government alleges that Johnson said he was "aware that the Solo Angels Nomad members had been conducting business (referring to criminal firearm and narcotic transactions) with other HAMC members and they needed to be careful and not conduct too much business too

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fast." ROI 54, which documents this conversation, does not support the government's contention. That document states "that he was aware that the Solo Angels Nomad members had been conducting business with other HAMC

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members" and "that the Solo Angels needed to be careful and not conduct too much business too fast, as this is dangerous and can make those involved

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vulnerable." The government's conclusions in both the ROI and the government's response came out of a long conversation concerning how the undercover agents should respond and react to CW Kramer's arrest and how they would be viewed by other motorcycle club members in the State of Arizona. The conversation had

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nothing to do with guns or drugs and "business" referred to the undercover agent's relationship with other motorcycle club members. In addition, it was well known that CW Kramer was not the only member of the Solo Angels undercover group to have a serious drug problem. Even if the government can some how contort the

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conversation into one concerning drugs it is an incredible stretch of the imagination to jump to the conclusion that telling someone not to use or deal drugs because their "president" had just been busted is RICO activity. Defendant Johnston contends that the government has again misrepresented the conversation and will supply transcripts of that conversation at the Franks hearing. Defendant Johnston submits that the government has failed to allege in its response any predicate acts of RICO activity, or any other criminal activity,

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that would be sufficient to show probable cause for the issuance of an indicia warrant on his house. Once the CW Kramer allegations are stricken from the affidavit there simply is no evidence that Johnston "was conducting the affairs of

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the HAMC enterprise, at least in part, through a pattern of racketeering." Response at page 7. Therefore, there is no basis for searching his house for

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evidence of association, the existence of the enterprise or evidence of racketeering activities. The government cites United States v. Bennett, 219 F.3d 1117 (9th Cir. 2000) for the proposition that the omission of the unreliability of CW Kramer

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was not material to the existence of probable cause in this matter. However, rather than supporting the government's position, Bennett underscores the weakness of the government's case herein. In Bennett the government applied for a wiretap affidavit based in part on the allegations of a confidential witness who was known

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to have perjured himself, lied, been arrested and failed to pay income taxes. This information was not reported to the issuing judge. However, the authorities had photographed, video taped and observed three separate drug transactions in which the confidential informant was involved. The court found that the confidential informant's low credibility was offset by the overwhelming unchallenged documentary evidence supporting a finding of probable cause that three different drug deals had occurred. No such record of overwhelming unchallenged exists in

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this case or is even alleged by the government. The most important distinguishing factor between this case and Bennett is that there are no allegations that Johnston engaged in any drug or gun

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sales. All that CW Kramer really alleges is that Johnston had knowledge of and acquiesced in the actions of the Solo Angels investigative group. Those actions

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consisted of undercover agents buying guns from Hells Angels, something that is not inherently unlawful and is not RICO activity, and buying small amounts of drugs for personal use. Importantly, the statements attributed to Defendant Johnston are not supported by any contemporaneous record and, in fact, where

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tapes do exist of these conversations they refute the government's allegations. CW Kramer's reliability, or rather lack thereof, was a significantly material factor in determining whether to give any credence to his allegations. The unsupported statement by Slatalla that the information he set forth

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in the affidavit was collaborated by one or more investigative procedures, without identifying what those procedures were for Johnston, takes nothing away from the misrepresentation of CW Kramer's reliability to the issuing judge in this case. In its response the government has alleged no specific collaborating information that it has to support CW Kramer and, quite frankly, none exists. The government simply does not make a case for probable cause based on other investigative material.

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Finally, the government makes the bold statement that the issuing judge in this case must have known that CW Kramer was a criminal because Slatalla indicated that CW Kramer had been arrested. This argument misses the

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point. It is common knowledge that confidential informants agree to cooperate with the government because they have been caught engaging in criminal activity.

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Here, we have a meth addict who is alleged to have been selling three to four ounces of methamphetamine per day under the nose of federal agents, engaging in the daily use of methamphetamine and later found by the federal judge who issued this search warrant to be "inherently unreliable and untrustworthy". The argument

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that pervasive drug use and sales is merely cumulative to knowledge of an arrest is simply ludicrous. CONCLUSION: Based on the foregoing, Defendant respectfully submits that he has

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shown substantial evidence that Agent Slatalla intentionally, knowingly and/or recklessly misrepresented or omitted material facts from the search warrant affidavit in this case and respectfully requests that this court set a Franks hearing to determine what material must be excised from the affidavit and then redetermine probable cause for the issuance of a warrant on the Defendant's house. In the alternative, Defendant requests that the court find that a Franks hearing is not necessary, given the pervasiveness of the misrepresentations and find, as a matter

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of law, that there was no probable cause for the issuance of the search warrant affidavit for the Defendant's house.

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RESPECTFULLY SUBMITTED this 30th day of January, 2006.

/s/Brian F Russo Brian Russo Attorney for Defendant

COPY of the foregoing electronically mailed this 30th day of January, 2006, to: Tim Duax Keith Vercauteran Assistant U.S. Attorneys All Defense Counsel

BY:
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