Brian F. Russo, Esq. AZ Bar No. 018594 111 West Monroe Street Suite 1212 Phoenix, Arizona (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 DEFENDANT'S REPLY RE: MOTION TO DISMISS FOR FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS (Evidentiary Hearing Requested)
COMES NOW the defendant Robert Johnston, by and through counsel, Brian F. Russo, and on behalf of all other defendants and hereby submits this Reply to the United State's Response. The premise of the Court's order dated September 14, 2005 [Docket 813] was to insure that the government had complied with its discovery obligations. The Court stated that it was taking the extraordinary step, before considering dismissal, of having the Chief of the Criminal Division appear and certify that all discovery was complete. At the 12th case management conference, the government, through Patrick Schneider, certified to the court that the government has fulfilled all obligations pursuant to Rule 16. This action presumes that the
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government complied with its obligation to inquire of law enforcement if all discovery has been provided. On January 6, 2006 the government filed a Notice of Potential Discovery [Docket 1027] stating that there are additional materials not previously provided because law enforcement did not provide the material to the United States Attorneys. However, the government also requested that these materials be the subject of a protective order. Further, the government admitted in its Response that there is additional evidence that has not been disclosed. The time for disclosure is long past; obviously the government did not take the Court's order seriously, as is apparent from its own admission that additional materials from an investigation that began four years ago and ended two years ago have not been disclosed. In spite of this admission of non-compliance by the government, the court did not take any action to sanction the government. In fact, the court commended the government for its diligence in providing discovery. Murders The government admits that there were in fact murders investigated during this case as was stated by Agent Slatella. Two of these murders, the government claims, were of members of the Hells Angels. One of them, according to the investigation, involves a member of the Mongols as a suspect. The government's excuse for not providing the discovery related to this portion of this investigation is that the "ATF" did not personally investigate them. Despite the government's disingenuous attempt to create a distinction that legally does not exist, Agent Slatella uses the words "we" investigated several homicides related to this organization enterprise. It is axiomatic the government's obligation is to provide materials from any agency that contributed to the investigation of the
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case. Kyles v. Whitley, 514 U.S. 419 (1995). In fact, most of the Garcia murder was investigated by MCSO, not ATF. Yet, these materials were provided to the defense. So, the government's excuse is contradicted by their own disclosures. These materials are not only relevant and material to defendant's case, but also appear exculpatory. Certainly, the defendants, as an example would be permitted to use these materials to show why certain members of the HAMC carry firearms. These materials could also be presented in the context of the Laughlin incident in relation to violent acts committed by the Mongols. Put simply, this evidence is material and favorable to the defense. Minutes and Bank Records The government attempts to portray the lack of disclosure of these items as a problem of interpretation. The government claims it has produced the documents referred to by Agent Slatella. A thorough review of the documents disclosed by the government fails to indicate the specific entries referenced by the agent concerning proceeds of illegal activities. If these documents exist, the government must produce them. If they do not, the government must state that the agent embellished and fabricated. However, it is suggested that the most enlightening way to find out would be to have an evidentiary hearing wherein Agent Slatella can explain exactly which documents he is referring to. Methamphetamine The government contradicts itself in its response to Agent Slatella's statement that the HAMC control the meth market in Arizona. First they say it was merely Agent Slatella's opinion and that his statement was mischaracterized by the defendant. Then they claim in the same paragraph that HAMC control of the meth market in Arizona is supported by CIs and ample evidence.
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This suggests two things; (1) apparently the government believes it possesses evidence to support this theory as posited by Agent Slatella; and (2) it has not been produced. A thorough review of all materials produced shows nothing more than purchase and sales of personal use methamphetamine, most of which involved the instigation and participation of CIs and Agents. In any event, the total amount of methamphetamine involved in this two year investigation only resulted in 26 grams of methamphetamine. So, if there are documents or materials upon which Agent Slatella bases his position and upon which the government makes its assertion, they should be produced. Obviously, the best way to determine what Agent Slatella was referencing in support of his position would be to have an evidentiary hearing and question him about what materials and discovery exist to support this theory. This is clearly the only way the defense can be satisfied that the government is not holding additional materials. It should be noted that discovery is only produced when the defense points out that certain materials have not been disclosed. It is only then that the government goes out and looks for the undisclosed materials. This practice is simply contrary to their established obligation and is disobedience to the court's orders. Surveillance Videos The government attempts to portray the Detective's statement as a misunderstanding. Yet, at the case management conference they changed
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their mind and said that the Detective was mistaken. Nevertheless, the Detective's statements on the record were clear and unambiguous. He was
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asked specifically about videos and agreed there were hundreds. He was then asked specifically about audio, separate from video. His response was
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quoted in defendant's Motion, but will be repeated here for clarification. RS: In the undercover capacity? So I presume there's
hundreds of videotapes. DS: More or less, yeah. Audiotapes as well? Yes.
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RS: DS:
(R.T. Sarasarsus p 8, ln 1-23 attached hereto as Exhibit 4). It cannot be seriously argued that the Detective responsible for the videos
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was mistaken about the volume of the materials he produced. Nevertheless, if
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there is a factual dispute about the existence of the videoetapes and the volume, the
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only proper method of determining the truth is an evidentiary hearing, not the
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government prosecutor's claims of mistake and misunderstanding.
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Surveillance Logs
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The reference made by the Detective concerning Operation Plans was in
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relation to the discussion concerning Surveillance videos. His description of the
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ops plans more closely resemble Surveillance logs. Nevertheless, if there is a
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factual dispute as to the materials to which he is referring, an evidentiary hearing is
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necessary and proper to resolve the issue.
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Videotape of Donald Smith Residence
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Agent Worrel testified under oath at a hearing in the District Court in
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Nevada concerning the search of Mr. Smith's residence. A transcript of that
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hearing clearly shows that Agent Worrel stated Mr. Smith's residence was videotaped during the execution of the search warrant. In fact, his testimony on this issue covers more than 3 pages wherein he details the video, where it is stored, the policy behind it, and when it was done. At the case management conference the government again trotted out an old favorite, claiming the Agent was mistaken. This seems to be a recurring theme among law enforcement who worked on this case. Nevertheless, the government's explanation cannot be trusted or believed. The Agent should be required to testify at an evidentiary hearing and explain, rather than the government's the government's claim that the Agent's sworn testimony is mistaken. Videotape of Johnston Residence The United States has denied the existence of this videotape for two years. Recently, and only after Mr. Johnston filed a Motion to Dismiss for not producing it, the government went back and checked for the video. AUSA Duax explains that the agents believed the video was not viewable due to operator error or tape degradation. Now, it is claimed that it was just played on an incorrect format. What seems to be lost on the government is the fact that they never disclosed to Johnston that the tape existed, and that they believed there were problems with it. They never provided the copy they had so that the defendant may have discovered their incompetence. Instead the United States chose to lie about the tape and claim that Agents did not videotape Johnston's residence. The government finally produced the tape on January 18, 2006, more than three years after it was created. The defense has viewed the tape and found it not only useful, but exculpatory.
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One point that should be emphasized is that the government has had all of the materials requested herein for over three years. The defense has been asking for discovery for over two years. Trial is three months away and we are still receiving materials to which we have been entitled from the beginning. Rather than sanctioning the government, the court continues to order that they produce materials without regard to the fact that it only further serves to prejudice the defense by taking away time from substantive trial preparation. Dismissal is the Appropriate Sanction/Remedy The government admits that materials have not been produced, but claim it was not bad faith. This is simply contrary to all notions of fairness. Lying about the existence of a video is clearly bad faith. Claiming that murder investigations are not discoverable because they were done by an agency other than the ATF is dishonest. Withholding materials that contradict the government's theory of the case is prejudicial. It is well established that "under Brady, a defendant's due process rights are violated if the government failed to disclose evidence that is material and favorable." United States v. Ross, 372 U.S. 1097, 1107 (9th Cir. 2004). "Evidence is material and favorable if there is a reasonable probability that the disclosure of the evidence would have changed the trial's result." Id. citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985). "The materiality of omitted evidence is assessed in the light of other evidence, not merely in terms of its probative value standing alone." Id. citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995); United States v. Agurs, 427 U.S. 97, 96 S.Ct 2392 (1976). Although this case has not proceeded to trial, the defendant's ability to prepare and effectively utilize
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materials that have been withheld is severely diminished and cannot fully be assessed until the materials are provided and reviewed. Federal Courts also have inherent supervisory powers to dismiss an indictment in response to prosecutorial misconduct that falls short of a due process violation. United States v. Ross, 372 U.S. 1097, 1107 (9th Cir. 2004). "[T]he supervisory power may be used `to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules (imposed by Constitution or laws) governing matters apart from trial itself. Id. at 1109-10. "To justify exercise of the court's supervisory powers, prosecutorial misconduct must (1) be flagrant and (2) cause `substantial prejudice' to the defendant." Id. Flagrant Any analysis of flagrant prosecutor misconduct concerning disclosure must look at the totality of the conduct, not an isolated piece of evidence. The word Flagrant is defined as:
conspicuously offensive
Webster's Online Dictionary, www.webster.com 2006.
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This Court's order as detailed in Docket 813 is referred to and incorporated herein by reference as an example of the prosecutor's failure to comply with discovery obligations. All materials listed in the defendant's Motion is evidence the government has had in its possession and surely should have discussed with its agents over the course of this litigation. However, the government continues to ignore its obligation to be aware of the evidence that exists in this case. A prosecutor is deemed to have knowledge of and access to anything in the custody or control of any law enforcement agency participating in the same investigation of the defendants. United States v. Ross, 372 U.S. 1097, 1111 (9th Cir. 2004); citing United States v. Zuno-Arce, 44 F.3d 1420 (9th Cir. 1995). "The prosecutor's disclosure obligation turns on his or her actual knowledge of, and access to, the information at issue. Actual knowledge is particularly significant when determining whether the prosecution's behavior constitutes flagrant misconduct." Id. All of the evidence referred to has been in the custody of the ATF in its Phoenix evidence vault. This Court repeatedly addressed the government's failure to provide discovery materials. The government has not complied with its repeated promises to comply with disclosure; the government has failed to comply with court orders and deadlines concerning disclosure; the government failed to strictly comply with a court ordered deadline in February 2004 concerning Laughlin video disclosures. Finally, the Court required certification that the government had complied with Rule 16, which includes accessing materials in the custody and control of its agents. Ross supra at 1111. Shortly after this certification the government admitted its agents did not turn over additional materials. Further, the government admits it has evidence of other murders investigated by law enforcement and
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possessed by its agents that it did not disclose. Thus, the government's conduct has been flagrant because they had knowledge of the materials and willfully refused to disclose evidence. Substantial Prejudice The Court may dismiss under its supervisory power if the prosecutor's misconduct causes substantial prejudice to the defendant. United States v. Ross, 372 U.S. 1097, 1111 (9th Cir. 2004). The Ross Court's analysis of substantial prejudice was conducted in a post verdict context. The Court stated that the proper inquiry is whether the conduct "had at least some impact on the verdict and thus redounded to the defendant's prejudice." United States v. Ross, 372 U.S. 1097, 1110 (9th Cir. 2004). They also explained that the standard is less stringent than the Brady materiality standard. Id. In addition, the Court's supervisory powers are used for prophylactic or corrective measures prior to trial. United States v. Ross, 372 U.S. 1097, 1110-11 (9th Cir. 2004)(Supervisory power may be used to prevent parties from reaping benefit or incurring harm from violations of substantive or procedural rules . . . matters apart from the trial itself). In this context the Ross Court's "some impact" analysis is also applicable. The defendant has filed numerous Motions in compliance with the Court's deadlines that were predicated on incomplete and piecemeal discovery. The defendant committed to certain positions in Motions and pleadings based on incomplete disclosure and the government's assertions that discovery was complete. The defendant has spent time, money and resources obtaining and preparing in light of what was produced and the avowals from the government that
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Rule 16 had been complied with. Now, the defendant is forced at this late stage to re-evaluate theories and strategies made in preparation for motions and trial. Mr. Johnston does not have unlimited resources and the defense does not have unlimited time to go back and re-evaluate tactical and strategic decisions in light of new disclosures and materials that should have been disclosed long ago. It should be noted in contrast that the government has enlisted the assistance of additional AUSAs and staff to participate in this litigation. The government has unlimited resources and minion to participate in the preparation of this case. The defendant's do not have those same resources. All defense attorneys in this case are either sole practitioners with little or no staff or are two person firms with limited resources. They certainly do not have access to the army necessary to tackle the discovery tasks within the time proscribed by the court. In addition, the government has several levels of assistance at their disposal. That is, the government has its agents, law enforcement personal who participated in the investigation, and agents form Las Vegas Metro to assist in the preparation of materials for trial. The government has had these resources for 4 years and still has not been able to comply with its disclosure obligations or the court's orders. The defendant's have spent numerous hours focused solely on obtaining evidence that should have been disclosed by the government. The matrices consumed numerous hours and resources and were only necessary because of the government's refusal to comply with its discovery obligations. As a final note, it should be pointed out that prosecutors may be sanctioned even of the court does not find that the conduct was flagrant or caused substantial prejudice, but still rises to the level of misconduct. United States v. Ross, 372 U.S. 1097, 1112 (9th Cir. 2004). The defense believes that the totality of circumstances
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presented in this brief detail more than sufficient flagrancy by the government and that substantial prejudice has clearly been demonstrated. Nevertheless, if the court disagrees, it can still issue a sanction proportionate to the misconduct. Id. (Sanctions may be necessary to punish prosecutors who fail to fulfill their duty "to win fairly, staying within the rules.") citing United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). Conclusion The defendants respectfully request that this court impose the appropriate sanction/remedy as set forth in Federal Rules of Criminal Procedure, Rule 16 and existing case law. The defendants submit that they have demonstrated flagrancy in the repetitiveness and dishonesty of the government's conduct and that they have been substantially prejudiced in numerous ways as detailed above. Therefore, the defendant's respectfully submit that dismissal is the appropriate remedy.
RESPECTFULLY SUBMITTED this 25th day of January, 2006.
/s/Brian F. Russo Brian F. Russo Attorney for Defendant
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Copy of the foregoing electronically Mailed this 25th day of January, 2006, to: Tim Duax Asst. U.S. Attorney Keith Vercauteran Asst. U.S. Attorney All Defense Counsel /s
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