Free Reply to Response - District Court of Arizona - Arizona

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Brian F. Russo (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 REPLY TO GOVERTMENT'S RESPONSE RE: MOTION TO EXCLUDE OR LIMIT GANG EXPERT TESTIMONY

(Evidentiary Hearing Requested)

COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby submits this Reply to the Government's Response to his Motion to Exclude or Limit Gang Expert Testimony. It is abundantly clear from the government's Response that they are trying very hard to have agents, who are percipient and participating witnesses, qualified as experts for the purpose of placing the imprimatur of expertise on what is traditionally fact testimony and to insulate their CIs. It should be noted that the government has not listed an independent expert who has previously been qualified and who could, in theory, objectively evaluate the proffered areas needed to assist the jury in its understanding of OMGs. The government has previously used
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people qualified as exerts in this area who did not personally participate in the instant litigation. The case heavily relied on by the government in its brief, United States v. Hanky, 203 F.3d 1160 (9th Cir. 2000) is distinguished on several levels. First, the subject matter testimony in that case dealt with the retaliation of a gang member who testified against another gang member. The expert was used to impeach the credibility of a gang member who testified for the defendant. In that case, the court explained that the police officer as a gang expert was proper because the gang in that case did not "have by-laws, organizational minutes, or any other normal means of identification" that could be used to inform the jury without an expert. Id. at 1170. In our case, the government seized by-laws, minutes, bank records and indicia of membership from each of the named defendants. Structure and affiliation evidence already exists and can be testified to by the agents who seized the material. It is then for the jury to determine what these documents prove and don't prove. An expert is simply not needed to tell the jury what a fact witness can do. Put simply, by-laws, bank records, minutes and indicia do not require specialized expertise because they are not outside the understanding of the jurors. The material does not require an expert to tell them what they should infer. The government also cites the case United States v. Bredell, 888 F.2d 1081 (8th Cir. 1989) for the proposition that expert testimony has been permitted specifically about the HAMC and its operations. (Governments Brief p.3, lines 1920). This is clearly a misrepresentation of what this case stands for; there was no analysis concerning expert testimony. Rather the case there dealt with the trial

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court's granting of a judgment of acquittal and only mentions expert testimony with regard to what the jury might have considered in reaching their verdict. The government asserts that its proffered experts are qualified based on their "extensive experience with HAMC and other OMGs as well as years of training and study of" the same. (Government's brief p. 4, lines 19-22). However, the government has failed to provide any specific reference to what training and what experience. In fact, as referenced in defendant's Motion most of the proffered experts have no specific training and experience with regard to the HAMC. Further, most of their proposed testimony deals with issues not requiring expert testimony, i.e., having tattoos, being photographed with other members, wearing OMG apparel and or insignias, etc. As mentioned above, these items are self explanatory and do not require specialized knowledge to understand. Finally, as a reminder, while the proffered experts may have training that makes them better investigators and officers, and while seminars and specialized training may assist them in investigating potential OMG suspects and in cracking a case, this on-the-street training clearly does not necessarily translate into a methodology that permits them to testify in court. The government misunderstands the holding in United States v. Cromer, 389 F.3d 662 (6th Cir. 2005) and misleads the Court in its brief concerning the Crawford analysis in the area of formulating opinions based on testimonial hearsay. The holding in Cromer was clear; the admission of opinion testimony from an officer based on statements made by the CI violates defendant's Confrontation Clause rights. The Court in Cromer explained that: statements of a confidential informant are testimonial. Indeed, such statements fall squarely within Professor Friedman's paradigm: "A
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statement made knowingly to the authorities that describes criminal activity is almost always testimonial." Friedman, Confrontation, 86 Geo.L.J. at 1042. Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential-i.e., that not even his identity is disclosed to the defendant heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for crossexamination would make a mockery of the Confrontation Clause. Cf. Silva, 380 F.3d at 1020 ("This court has warned against the potential for abuse when police testify to the out-of-court statements of a confidential informant."). [Emphasis added]. United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2005). Perhaps the most important part of the above cited analysis is the admonition that the government will abuse the distinction between expert testimony and police

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opinion based on CI statements. That is, the government in this case is already attempting to violate Confrontation Clause rights by proffering experts to testify on matters clearly derived from their CIs. Cromer, at 675. Similar to the facts in Cromer, the government in this case will attempt to introduce testimony describing the commencement of its investigation based on information received from CIs. Cromer, at 672; hearsay relating to information gathered from CIs for search warrant affidavits. Id.; and, finally, but not intended

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as an exhaustive list of examples, the government will attempt to introduce statements from CIs concerning physical descriptions and nicknames. Id. Again,

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what is particularly troubling is the manner in which the government's experts offer these testimonial statements: for their truth.

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The government's motives here are transparent; cloak officers' testimony as expertise to inform the jury of hearsay statements and avoid subjecting their CIs to cross examination. The subjects about which these experts wish to proffer hearsay testimony are more properly testified to by the declarant and would not violate the

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Confrontation Clause. United States v. Cromer, 389 F.3d 662 (6th Cir. 2005). Put another way, the government's gang experts would be applying no expertise or special skill when making use of facts learned from CIs because it takes no expertise to opine based on the CI's statements concerning HAMC membership.

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See United States v. Dukagjini, 326 F.3d 45, 59 (2d Cir. 2003). Again, the Court must be aware and safeguard against the government's motives and potential for abuse in allowing proffered opinion evidence concerning membership in HAMC. The government wishes to equate membership in HAMC with the mental state necessary for participation in a conspiracy. This type of proposed testimony violates Rule 704(b). The government agrees with the law cited by defendant concerning the

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testimony about the function and operation of an OMG as overly prejudical. The danger, as conceded to by the government, is that the jury will equate membership with the charges crimes. For example, being a member of HAMC is irrelevant to

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whether or not a defendant sold drugs to an undercover officer because the agents and CIs have already conceded that not all members of HAMC sell drugs and that

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selling drugs is not a primary purpose of the HAMC. 1 So, clearly such testimony is irrelevant and overly prejudicial. The cumulative nature of the proposed testimony by the six different agents can be seen by reading government's Notice and attached CV. The summary, as

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discussed in more detail in defendant's Motion, overlaps in whole or significant part. Much of the proffered testimony could be introduced by one agent, because it is all the same. Again, the government only lists these six agents because it intends on cloaking its percipient and participating witnesses with the imprimatur of

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expert, instead of finding a qualified expert to independently and objectively form opinions. The danger of prejudice from having agents testify as both fact and expert witnesses is conceded to by the government. This practice is clearly frowned upon by the Ninth Circuit and could easily be avoided with the use of someone who has already testified in this area and who has not actively participated in this investigation as a percipient.

22 23 24 25 1 Agents Slatella and Dobyns have given statements, some under oath, that it is not a primary purpose or function of the HAMC to sell drugs. Also, Michael Kramer, a former member of the HAMC and a current CI stated that it is not a function of the HAMC that members are required to sell drugs. 6

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At a minimum the court should conduct a Daubert hearing well in advance of the trial in order to fully address the concerns raised by the defendants and

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wherein a record of the Court's analysis in discharging its gatekeeping function can be meaningfully pursued.

RESPECTFULLY SUBMITTED this 30th day of January, 2006. /s/Brian F. Russo Brian F. 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

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/s/

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