Free Reply to Response - District Court of Arizona - Arizona

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Brian F. Russo (018594) Attorney at Law 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 IN THE UNITED STATES DISTICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, Defendant.

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Case No. CR03-1167-PHX-DGC DEFENDANT'S REPLY RE: MOTION TO RECONSIDER AND SUPPLEMENTAL GROUNDS FOR MOTION FOR DISCLOSURE OF GRAND JURY TRANSCRIPTS

(Evidentiary Hearing Requested) COMES NOW the defendant ROBERT J. JOHNSTON, by and through his attorney, Brian F. Russo, and on behalf of all other defendants, and hereby submits his Reply to the Government's Response concerning his Motion to Reconsider and Supplemental Grounds for Disclosure of Grand Jury Transcripts. The government contends that defendant's bases for disclosure are insufficient. However, in support of this contention the government concedes that a factual dispute exists with regard to CI-790's false statement. The government states that Agent Mitchell never presented a false statement and CI-790 claims he did. This is clearly a factual dispute that can only be resolved by an evidentiary hearing where the court assesses the witnesses' credibility. It would be error to

Case 2:03-cr-01167-DGC

Document 1135

Filed 01/30/2006

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accept the government's version as true without having the agent and CI-790 testify in order to more fully develop the facts and circumstances surrounding a relevant and material issue. The government concedes that evidence derived from CI-790 was presented to the grand jury. However they state that he was not forced, threatened or coerced. Again, this is not what Rudy Kramer states. He clearly says he was threatened and by whom; someone is lying. The Government contends that Rudy Kramer already said he didn't lie in the same document (transcript) submitted by the defendant. The government cites the court's ruling from October 12, 2005 to support its position. However, the court and the govt erroneously assume that Rudy Kramer was telling the truth when he claims he didn't sign the false statement. It is a dubious and unsupportable position to rely on this when denying a substantive Motion that has admitted factual disputes. The testimony concerning bank records and minutes presented to the grand jury was false. The agent claims that the bank records and minutes show proceeds and discuss criminal activity. This is simply not true. A review of the disclosed evidence fails to show any of the claims made by Agent Slatella. Although the government is correct that an indictment cannot be dismissed for insufficient evidence, it also concedes that an indictment must be dismissed where false evidence has been presented. In this case, grounds exist to show that knowingly false evidence was presented and that defendant's due process rights are violated when the agent testifies that bank records and minutes show proceeds of criminal activity when he knew they did not.

Case 2:03-cr-01167-DGC

Document 1135

Filed 01/30/2006

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The defendant has provided numerous options and cited supporting case law in his Motion for proper and specific disclosure of the transcripts. At a minimum, the defendant has met the threshold burden of showing a particularized need based on the fact that knowingly false evidence was presented to the grand jury by way of testimony concerning bank records and minutes and that a factual dispute exists with regard to Rudy Kramer. This court should not rely on the claims made by the government that it did not threaten Rudy Kramer when he says they did. The court should order an evidentiary hearing so there can be full and open discourse on these issues.

RESPECTFULLY SUBMITTED this 30th day of January, 2006.

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

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

Case 2:03-cr-01167-DGC

Document 1135

Filed 01/30/2006

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