Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant U.S. Attorney Arizona State Bar No. 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Robert J. Johnston, Defendant. UNITED STATES' RESPONSE TO DEFENDANT JOHNSTON'S MOTION TO DISMISS INDICTMENT RE: MISCONDUCT OCCURRING BEFORE THE GRAND JURY No. CR-03-1167-PHX-DGC

The United States of America, by and through counsel undersigned, hereby submits its Response to Defendant ROBERT J. JOHNSTON's Motion to Dismiss Indictment Re: Misconduct Occurring Before the Grand Jury. The United States requests that this Court deny Defendant JOHNSTON's motion as supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

Case 2:03-cr-01167-DGC

Document 1087

Filed 01/17/2006

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1 2 I. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On October 22, 2003, sixteen members of the Hells Angels Motorcycle Club (HAMC) were

4 indicted by a federal grand jury with six counts charged. On September 30, 2004, the same 5 sixteen members of the Hells Angels Motorcycle Club (HAMC) were indicted by a federal grand 6 jury in the first superseding indictment with eight counts charged. On January 19, 2005, the 7 same sixteen members of the Hells Angels Motorcycle Club (HAMC) were indicted by a federal 8 grand jury in the second superseding indictment with forty-three counts charged. 9 Defendant JOHNSTON claims he is entitled to the Grand Jury transcripts based on three

10 areas where he claims the government must have presented false or misleading information to 11 the Grand Jury. These three areas include: (1) CI 790 being presented with a false statement to 12 sign, (2) HAMC officers meetings and minutes, and (3) Murders committed by the HAMC. 13 First, CI-790 did make a phone call to a friend and was attempting to get his friend to do a

14 favor for him while CI-790 was in custody. During that phone call CI-790 talked about Agent 15 Mitchell presenting a false statement to him, wanting CI-790 to implicate this same friend. No 16 such false statement exists and Agent Mitchell never presented any false statement to CI-790 to 17 sign. 18 Regarding the second and third areas of inquiry, defendant JOHNSTON claims he is entitled

19 to the Grand Jury transcripts based on information from an interview of Agent Slatalla. 20 Defendant then assumes that Agent Slatalla must have testified to some of these same items 21 before the Grand Jury. Defense has been provided the bank records and minutes of meetings and 22 has also been afforded the opportunity to view the documents themselves in April of 2004. 23 Defendant JOHNSTON also stated that "Agent Slatalla claims that there were several

24 murders committed by the HAMC and this organization enterprise." However, defense 25 misconstrues what was actually said by Agent Slatalla. The transcript attached to defendant's 26 motion states that Agent Slatalla stated that there are several homicides "that are related" to the 27 HAMC. Therefore, HAMC members could have been suspects, witnesses, investigative leads, 28 or even victims of the murders.
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1 II. LEGAL ANALYSIS 2 3 A. Historical Perspective of Grand Juries Grand jury proceedings were secret when the grand jury process was imported into this

4 country from England, and the rule of secrecy has always been a part of our federal common law 5 and an integral part of our criminal justice system. Douglas Oil v. Petrol Stops Northwest, 441 6 U.S. 211, 218 (1979). 7 8 9 10 11 First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. Id. at 219. Thus, the longstanding rule of grand jury secrecy serves both public and private

12 interests, and it was codified by Rule 6(e) of the Federal Rules of Criminal Procedure. It is clear, 13 in light of efforts by the media to obtain access to grand jury information generated as a part of 14 the Starr Independent Counsel investigation, that any prior common law right or claim to access 15 to these matters was supplanted by Rule 6(e)(5) and 6(e)(6). In re Motions of Dow Jones & Co., 16 142 F.3d 496 (U.S.App.D.C. 1998). 17 B. Statutory Authority

18 The Federal Rules of Criminal Procedure, Rule 6(e)(1) provides: 19 20 21 22 23 24 25 (e) Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter's notes, and any transcript prepared from those notes.

26 The Federal Rules of Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii) provide: 27 28 (3) Exceptions. (E) The court may authorize disclosure--at a time, in a manner, and
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1 2 3 4 5

subject to any other conditions that it directs--of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

6 The Federal Rules of Criminal Procedure, Rule 6(e)(6) provides: 7 8 9 10 11 (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. C. Judicial Interpretation A court may permit disclosure of grand jury materials under Rule 6(e)(3)(C)(i) [renumbered

12 as 6(e)(3)(E)(i) in 2002 Amendment] only when the requesting party has demonstrated a 13 "particularized need" for the material. The particularized need standard was defined in Douglas 14 Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979). Under the standard, the movant must 15 demonstrate that the material sought is: 16 17 18 19 20 Id. at 222; see also United States v. Procter & Gamble, 356 U.S. 677, 682 (1958); United States 21 v. Perez, 67 F.3d 1371, 1381 (9th Cir. 1995). 22 If the court concludes that disclosure is warranted, it must be limited to only that material [N]eeded to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed. . . . [Moreover], in considering the effects of disclosure of grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries.

23 for which particularized need has been shown. Douglas Oil Co., 441 U.S. at 222; see also United 24 States v. Fischbach and Moore, Inc., 776 F.2d 839, 845-46 (9th Cir. 1985); United States v. 25 Liuzzo, 739 F.2d 541, 545 (11th Cir. 1984); United States v. Sobotka, 623 F.2d 764, 768 (2d Cir. 26 1980); Allis-Chalmers Mfg. Co. v. City of Fort Pierce, Fla., 323 F.2d 233, 242 (5th Cir. 1963). 27 Further, any disclosure "may include protective limitations on the use of the disclosed material." 28 Douglas Oil Co., 441 U.S. at 223. The party seeking disclosure has the burden of proof with
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1 regard to establishing particularized need. Id. The district court that determines whether there 2 is "particularized need" is vested with substantial discretion in resolving the matter. See In re 3 Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986); In re Federal Grand Jury Proceedings, 760 4 F.2d 436, 439 (2d Cir. 1985); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293, 5 1299 (4th Cir. 1986); In re Antitrust Grand Jury, 805 F.2d 155, 161 (6th Cir. 1986); United 6 States v. Peters, 791 F.2d 1270, 1284 (7th Cir. 1986); United States v. Benson, 760 F.2d 862, 7 864 (8th Cir. 1985); United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985); United States 8 v. Warren, 747 F.2d 1339, 1347 (10th Cir. 1984). 9 Disclosure will not be allowed upon a mere showing of relevance, nor for general discovery.

10 See United States v. Procter & Gamble, 356 U.S. 677 (1958); Hernly v. United States, 832 F.2d 11 980, 984-85 (7th Cir. 1987); Thomas v. United States, 597 F.2d 656, 658 (8th Cir. 1979); Petrol 12 Stops Northwest v. United States, 571 F.2d 1127, 1129 (9th Cir. 1978), rev'd on other grounds, 13 Douglas Oil Co., at 211. In most cases, convenience, avoidance of delay, the complexity of the 14 case, the passage of time, and expense also are insufficient reasons to justify disclosure. See 15 Smith v. United States, 423 U.S. 1303, 1304 (1975); United States v. Procter & Gamble, 356 16 U.S. 677, 683 (1958); United States v. Sobotka, 623 F.2d 764, 767 (2d Cir. 1980); In re Grand 17 Jury Matter, 697 F.2d 511, 513-14 (3d Cir. 1982); In re Disclosure of Evidence, 650 F.2d 599, 18 602 (5th Cir. Unit B 1971) (per curium) modified on other grounds, 662 F.2d 362 (5th Cir. Unit 19 B 1981); In re Holovachka, 317 F.2d 834, 837-38 (7th Cir. 1963), aff'd, 463 U.S. 418 (1983); In 20 re Sells, 719 F.2d 985 (9th Cir. 1983); United States v. Liuzzo, 739 F.2d 541, 545 (11th Cir. 21 1984). 22 Generally, the most significant consideration that survives the termination of the grand jury

23 investigation is that secrecy encourages witnesses to testify fully and honestly without fear of 24 retribution. This consideration should be given significant weight regardless of the status of the 25 investigation. See United States v. Sobotka, 623 F.2d 764, 767 (2d Cir. 1980); Illinois v. 26 Sarbaugh, 552 F.2d 768, 775 (7th Cir. 1977); Petrol Stops Northwest v. United States, 571 F.2d 27 1127, 1128-29 (9th Cir. 1978), rev'd on other grounds sub nom., Douglas Oil Co., 441 U.S. 211 28 (1979).
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1

An indictment may not be dismissed on the ground that incompetent or inadequate evidence

2 was presented to the grand jury. See United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 3 1983); Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993) (holding that the district court did not 4 err in failing to dismiss an indictment on the ground that the prosecutor failed to present 5 exculpatory evidence to the grand jury); United States v. Basurto, 497 F.2d 781, 784 (9th Cir. 6 1974) ("It is clear . . . that when a duly constituted grand jury returns an indictment valid on its 7 face, no independent inquiry may be made to determine the kind of evidence considered by the 8 grand jury in making its decision."). Moreover, a defendant's desire to have the grand jury 9 transcripts as a discovery tool to help him prepare a motion to dismiss does not constitute a 10 particularized need that outweighs the policy of secrecy. See Douglas Oil, 441 U.S. at 222; 11 Bennett, 702 F.2d at 836; Thompson, 493 F.2d at 309. 12 13 D. Legal Argument Defendant JOHNSTON claims that this Court should dismiss the case for misconduct before

14 the Grand Jury. However, the defendants have failed to meet the prerequisite showing set forth 15 in the Federal Rules of Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii) to even obtain the 16 transcripts. The Federal Rules of Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii), as well as 17 established case law hold that transcripts of grand jury proceedings may be disclosed, but only 18 upon a showing of particularized need that grounds may exist for a motion to dismiss the 19 indictment resulting from the grand jury proceedings. Defendant cites United States v. Basurto, 20 497 F.2d 781 (9th Cir. 1974) as authority to have this Court order the production of the Grand 21 Jury transcripts in this case. The Basurto case holds that the Due Process Clause of the Fifth 22 Amendment is violated when a defendant has to stand trial on an indictment which the 23 government knows is based partially on perjured testimony, when the perjured testimony is 24 material. Basurto, 497 F.2d at 785. The Ninth Circuit went on to state that whenever the 25 prosecutor learns of any perjury committed before the grand jury, he is under a duty to 26 immediately inform the court and opposing counsel -- and, if the perjury may be material, also 27 the grand jury -- in order that appropriate action may be taken. Basurto, 497 F.2d at 785, 786. 28 In the case now before this Court, the United States did not present any false or perjured
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1 testimony to the Grand Jury. The defendants contend that the work done by CI-790 was based 2 on force, threats and coercion. First, CI-790 was never forced, threatened or coerced to do 3 anything in this case. Secondly, CI-790 stated he would not sign any false statement. Lastly, 4 CI-790 never did any work on this case after he was arrested and incarcerated in November of 5 2002. No false statement exists and Agent Mitchell never presented any false statement to CI6 790 to sign. Therefore, there was no false or perjured testimony that was presented to the Grand 7 Jury in this case. 8 9 10 11 12 13 14 15 16 This Court ruled on October 12, 2005, as follows: As Defendant's own evidence shows, however, Kramer states that he did not lie or sign any false statements. Doc. #707 Ex. A, Tr. 3:24-25/4:1-21, 9:14-25. Defendant has thus not shown that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury. See Fed. R. Crim. P. 6(e)(3)(E)(ii). Nor has Defendant shown that a particularized need otherwise exists which outweighs the policy of grand jury secrecy. See Douglas Oil, 441 U.S. at 222; United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983) (holding that the district court properly denied the defendant's motion for disclosure of grand jury transcripts because "[t]he defendant's assertion that he ha[d] no way of knowing whether prosecutorial misconduct occurred [did] not constitute a particularized need outweighing the need for grand jury secrecy"); United States v. Thompson, 493 F.2d 305, 309 n.4 (9th Cir. 1974) ("The denial of [defendants'] pretrial motion for disclosure of grand jury testimony was proper since there was no demonstration of any `particularized need' to examine the testimony[.]"). Regarding the second area of inquiry, defendant JOHNSTON claims he is entitled to the

17 Grand Jury transcripts based on information from an interview of Agent Slatalla. Defendant then 18 assumes that Agent Slatalla must have testified to some of these same items before the Grand 19 Jury. Defense has been provided the bank records and minutes of meetings and has also been 20 afforded the opportunity to view the documents themselves in April of 2004. Even if defendant 21 JOHNSTON received the Grand Jury transcript, and Agent Slatalla testified to some of these 22 same items, that information could not lead to a dismissal of the indictment. An indictment may 23 not be dismissed on the ground that incompetent or inadequate evidence was presented to the 24 grand jury. See United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983); Guam v. 25 Muna, 999 F.2d 397, 399 (9th Cir. 1993) (holding that the district court did not err in failing to 26 dismiss an indictment on the ground that the prosecutor failed to present exculpatory evidence 27 to the grand jury). 28 Regarding the third area of inquiry regarding homicides, the ATF participated in the
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1 investigation of the Cynthia Garcia murder. ATF agents also investigated a claim that defendant 2 Rienstra murdered an individual in the desert. ATF agents solicited, but never found, information 3 to corroborate the Rienstra claim. Other investigations into Hells Angels related homicides were 4 conducted by other law enforcement agencies, specifically the Phoenix Police Department (PPD) 5 and the Arizona Department of public Safety (DPS). PPD and DPS also investigated the murder 6 of a California Hells Angel in a Phoenix bar. Even if defendant JOHNSTON received the Grand 7 Jury transcript, and Agent Slatalla testified to some of these same items, that information could 8 not lead to a dismissal of the indictment. An indictment may not be dismissed on the ground that 9 incompetent or inadequate evidence was presented to the grand jury. See United States v. Al 10 Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983); Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 11 1993) (holding that the district court did not err in failing to dismiss an indictment on the ground 12 that the prosecutor failed to present exculpatory evidence to the grand jury). 13 Additionally, some of the information contained within the Grand Jury transcripts include

14 testimony of witness statements that are part of the protective orders granted by this Court. 15 Some of these statements have been ordered by this Court to be disclosed on March 10, 2006. 16 If the defendants received the Grand Jury transcripts prior to March 10, 2006, the purpose for 17 these protective orders would have no effect. 18 The United States is well aware of its obligation to provide grand jury transcripts of any

19 witness who testified before the grand jury and will also testify at trial in this case. Those 20 transcripts will be provided to defense with other Jencks Act materials prior to trial in 21 accordance to this Court's prior Orders. The defendants have failed to show any particularized 22 need of why they need any grand jury transcripts at this time. Additionally, the defendants did 23 not specify what portion(s) of the grand jury transcripts they believe they are entitled to. From 24 the motion, it appears that the defense wish to have all transcripts as a discovery tool with hopes 25 of finding some basis for a motion to dismiss. As stated above, this is insufficient to require 26 disclosure. 27 Defendants have previously filed a Motion to Disclose Grand Jury Transcript on October

28 1, 2004, and again on April 8, 2005. The United States responded to these motions on October
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1 6, 2004, and May 20, 2005. This Court denied the request in Orders dated December 21, 2004, 2 and October 12, 2005. 3 Defendant speculates that misconduct must have occurred before the Grand Jury because

4 the defendant uses his interpretation of the witnesses' statements. The United States disagrees 5 with the defendants interpretations and the resolution of that dispute is for the jury to decide. 6 III. CONCLUSION 7 The defendants have failed to meet the prerequisite showing set forth in the Federal Rules

8 of Criminal Procedure, Rule 6(e)(3)(E)(i) and (ii). Therefore, the United States respectfully 9 requests that the defendant's Motion to Dismiss Indictment Re: Misconduct Occurring Before 10 the Grand Jury be denied. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01167-DGC

Document 1087 9 Filed 01/17/2006

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1 I hereby certify that on January 17, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Keith Vercauteren 22 KEITH E. VERCAUTEREN 23 24 25 26 27 28

Case 2:03-cr-01167-DGC

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