Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX Assistant U.S. Attorney Arizona State Bar No. 012694 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 Jr., Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS RE: FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS AND DEFENDANT SMITH'S SUPPLEMENT THERETO No. CR-03-1167-PHX-DGC

The United States of America, by and through counsel undersigned, hereby responds to

15 defendant Johnston's response to defendant's Motion to Dismiss Re: Failure to Comply with 16 Disclosure Obligations, and defendant Smith's Supplement thereto. The defendant has listed 17 nine categories of items it believes exist, and have not been provided through the discovery 18 process. The position of the United States is that the discovery relating the nine categories of 19 items listed in the defendant's motion has been produced to the defense, with the exception of 20 a five minute entry/exit video of the search of defendant Johnston's home, which will be 21 available to the defendant on January 18, 2006. The position of the United States is set forth 22 more completely in the attached Memorandum of Points and Authorities. 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney
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Respectfully submitted this 17th day of January, 2006.

1 2 3 I. Murders

MEMORANDUM OF POINTS AND AUTHORITIES

Defendant claims ATF agents investigated "several homicides" during the instant

4 investigation. The ATF participated in the investigation of the Cynthia Garcia murder. ATF 5 agents also investigated a claim that defendant Reinstra murdered an individual in the desert. 6 ATF agents solicited, but never found, information to corroborate the Reinstra claim. Other 7 investigations into Hells Angels related homicides were conducted by other law enforcement 8 agencies, specifically the Phoenix Police Department (PPD) and the Arizona Department of 9 public Safety (DPS), but the ATF did not conduct those investigations, nor were those 10 investigations related to the investigation of this case. PPD conducted an investigation into the 11 murder of Hell's Angel Daniel Seybert, and apprised the ATF of the caliber of projectile that had 12 killed Seybert. At the request of PPD and DPS, ATF allowed the weapons seized in its 13 investigation that matched the caliber of the Seybert projectiles put into the NIBIN weapon 14 identification database. The weapons were taken to DPS where DPS personnel entered the 15 information into the database. DPS then returned the weapons to ATF. No reports or other 16 information regarding the investigation was forwarded to ATF. 17 PPD and DPS also investigated the murder of a California Hells Angel in a Phoenix bar.

18 PPD and DPS believed a Mongol motorcycle club member may have been responsible, and 19 asked if ATF had information regarding the Mongol. ATF gave DPS and PPD pen register 20 information regarding the Mongol. 21 Information regarding the ATF's investigation into the Cynthia Garcia as been provided to

22 the defense. No information was ever discovered regarding the Reinstra allegations, so there was 23 nothing to disclose in that regard. As set forth above, the other murders to which Agent Slatalla 24 referred were not investigated by the ATF. 25 26 II. Minutes and Bank Records Defense claims it has not received discovery regarding the minutes of Hells Angels

27 meetings. However, such discovery was provided to the defense by means of placement with 28 APEX on March 1 of 2004, and was made available to the defense for in-person inspection and
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1 copying in April of 2004. Undersigned counsel attempted to verify the foregoing, and learned 2 that the images of the documents (including meeting minutes) seized from Hells Angels 3 clubhouses on July 8, 2003, are currently in the possession of APEX. Likewise, Hells Angels 4 bank records were seized from Hells Angels clubhouses during the July 8, 2003 search warrants. 5 Those documents were placed with APEX for imaging on March 1, 2004. In addition, defense 6 counsel were afforded the opportunity to view the documents themselves in April of 2004. What 7 these documents show or do not show is an issue for trial, and no longer an issue of discovery. 8 9 III. Methamphetamine Agent Slatalla, during an interview, stated his opinion that the Hells Angels have a very

10 large control of a specific methamphetamine market in the state of Arizona. This statement is 11 mischaracterized at page 10, lines 11 through 13 of the defendants' motion. Agent Slatalla 12 never stated that the Hells Angels were controlling the methamphetamine market in the state of 13 Arizona, as is represented by the defendants. Furthermore, Agent Slatalla never drafted any of 14 the affidavits used to obtain warrants in the Pancrazi matter. Independent DEA and Scottsdale 15 Police Department investigators drafted of the affidavits in the Pancrazi matter. Finally, it is the 16 position of the United States that the various agency reports, and recordings made by 17 confidential informants provide ample evidence that the Hells Angels controlled a specific 18 methamphetamine market within the State of Arizona. 19 20 IV. Surveillance Videos of UC's during their Activities with the Hells Angels The surveillance videotapes associated with this case have been provided to the defendants,

21 with the exception of those videotapes subject to the protective orders of this Court. Task force 22 Agent Susuras made statements during an interview that the defense has interpreted to mean 23 there are hundreds more videotapes of UC surveillance.(See, Defendant' Motion page 1, lines 24 1-10) Undersigned counsel conferred with Agent Susuras regarding the statements. There are 25 not hundereds of additional videotapes. Agent Susuras answered in the affirmative as to both 26 audio and video, referring to the total number of both. In that light, Agent Susuras is correct, as 27 the total number of audio and video recordings of UC's and their surveillance is over 200. In 28 addition, Agent Susuras indicated he made an error on July 28, 2004, when in an interview he
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1 stated he had started with ATF three years prior to the interview, or July of 2001. In fact, Agent 2 Susuras started with ATF in July of 2002. This fact is introduced to respond to defendant Smith's 3 supplement to defendant Johnston's Motion to Dismiss. 4 5 V. Surveillance Logs The defense states that the absence of surveillance logs in the present case is contrary to

6 normal investigative procedures used by law enforcement when conducting surveillance. This 7 may be true, but the present case was not a normal case. In a normal case, surveillance logs are 8 useful to note descriptions, locations, and appearances of unknown people. For example, in a 9 typical surveillance, agents may sit in a vehicle and observe the activities of unknown 10 individuals. Those agents would then record their observations in surveillance logs. However, 11 in the present case, given the utilization of a number of undercover agents, the vast majority of 12 people encountered as part of the case were identified by the undercover agents, and the agents' 13 identifications and observations were not placed in surveillance logs but were noted in the 14 investigative reports. The investigative reports have been provided to the defense. 15 The defense attempts to equate surveillance logs with operations plans. Surveillance logs

16 and operations plans are two different things. Operations plans are internal law enforcement 17 documents, subject to the exclusion provided in Rule 16(a)(2) of the Federal Rules of Criminal 18 Procedure. They describe tactics, techniques, and strategies to be used in conducting an

19 operation. Surveillance logs are records of agents' observations. This defendant has neither 20 requested operations plans nor shown they are material to the defense. 21 22 VI. Videotape of execution of search warrant of Donald Smith residence. There was no video taken of the search of Donald Smith's residence. Digital photographs

23 were taken, and those have been provided to the defense. Agent Andrew Worrell was consulted 24 regarding the allegations contained in the defendant's motion as he was the agent referenced in 25 paragraph G. Agent Worrell stated that if, on November 17, 2005, he stated there was video 26 taken, then he needed to correct the testimony because there was no video taken, only digital 27 photographs. The United States is also waiting for the November 17, 2005 transcript to see what 28 Agent Worrell said on that date.
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VII. Videotape of execution of search warrant of Robert Johnston residence. The United States did not believe the video of the search of defendant Johnston's residence

3 was viewable. When counsel had inquired of the case agent, he was told that video was not 4 viewable due to either operator error or tape degradation. Counsel inquired again regarding the 5 videotape, and attempted to view the tape in order to determine whether operator error or tape 6 degradation was most likely. The tape was not viewable, and seemed to indicate operator error. 7 However, the tape operator, recently returned from a two month stint in Georgia believed he had 8 properly recorded the entry/exit video. The apparent contradiction was finally resolved when it 9 was determined that the agent had recorded the video using an old analog recorder, the tape from 10 which would not play on the ATF's digital viewing/copying device. The agent then attempted 11 to play the tape in an analog machine, and the tape could be viewed with that machine. A copy 12 of the five-minute tape will be available to the defense on January 18, 2006. 13 14 VIII. Videotape of the execution of search warrant at the residence of Calvin Schaefer. The entry/exit video from the search of Calvin Schaefer's residence was provided to defense

15 counsel by placing a copy of the video with APEX, in the care of Mike Rabbitts on October 25, 16 2004. 17 18 19 IX. There has been no showing of a violation of Rule 16 or this Court's discovery orders that would warrant dismissal. With the exception of one five-minute videotape, the defendants have the discovery that

20 exists relative to the categories of inquiry set forth in the defendant's motion. Despite citing 21 United States v. Gee, 695 F.2d 1165, 1168 (9th Cir. 1983), and United States v. Simpson, 927 22 F.2d 1088, 1091 (9th Cir. 1991), the defendants do not endeavor to make the type of showing 23 required to warrant a dismissal of the charges. It chooses instead to mischaracterize previous 24 statements of the government. The government did not produce the Pancrazi wiretaps to make 25 the defense waste time and energy. It produced the Pancrazi wiretaps because the defense asked 26 for them first, and government believed it was a waste of the defense's time. And if 27 gamesmanship is afoot, it is the engagement of the defense, who would rather request a dismissal 28 over a discovery violation in lieu of receiving the discovery or trying the case on the merits.
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In exercising its discretion regarding Rule 16, the trial court should not impose a sanction

2 harsher than necessary to accomplish the goals of Rule 16. Id. at 1169. Certainly the relief 3 requested by the defendants, dismissal, is a disfavored remedy that should be used infrequently. 4 United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978). Dismissal of charges with prejudice 5 is permissible only in cases of flagrant Government misconduct. United States v. Simpson, 927 6 F.2d 1088, 1091 (9th Cir. 1991). In light of the absence of bad faith on the part of the 7 government, and the length of time before the trial date, dismissal seems wholly inappropriate. 8 "A violation of Rule 16 does not itself require a reversal, or even exclusion of the affected 9 testimony." United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997). The prejudice 10 that must be shown to justify reversal for a discovery violation is a likelihood that the verdict 11 would have been different had the government complied with the discovery rules, not had the 12 evidence been suppressed. United States v. Mendoza-Paz, 286 F.3d 1104, 1111 (9th Cir. 2002) 13 citing United States v. Baker, 10 F.3d 1374, 1398 n.8 (9th Cir. 1993). 14 In the present case, there has been no bad faith conduct on the part of the United States, and

15 the time remaining before trial is substantial. Wherefore, based upon the foregoing, the United 16 States respectfully requests this Court deny the defendants' motion in its entirety. 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

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], 8 [email protected] 9 Alan Richard Hock, [email protected] 10 Thomas M Hoidal, [email protected], [email protected] 11 Barbara Lynn Hull, [email protected] 12 13 14 15 16 17 18 19 20 21 22 s/ Timothy Duax 23 TIMOTHY T. DUAX 24 25 26 27 28
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David M Ochoa, [email protected] Jose S Padilla, [email protected], [email protected] Mark A Paige, [email protected] James Sun Park, [email protected], [email protected],[email protected] C Kenneth Ray, II, [email protected] Brian Fredrick Russo, [email protected], [email protected] Michael Shay Ryan, [email protected], [email protected] Philip A Seplow, [email protected], [email protected] Robert Storrs, [email protected], [email protected]