Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH VERCAUTEREN Arizona State Bar No. 013439 Assistant United States Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Robert Johnston, et al. Defendants. GOVERNMENT'S RESPONSE TO DEFENDANTS JOHNSTON, TOTH AND SMITH'S MOTIONS FOR BILL OF PARTICULARS

The United States, through undersigned counsel, responds to defendants JOHNSTON,

16 TOTH AND SMITH's Motions for a Bill of Particulars. The motion should be denied because 17 the defendants have been provided sufficient information through discovery, and the Indictment 18 is also very detailed in this case. The response is more fully set forth in the attached 19 Memorandum of Points and Authorities. 20 21 22 23 24 25 26 27 28 s/ Keith Vercauteren KEITH VERCAUTEREN Assistant U.S. 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 1080

Filed 01/17/2006

Page 1 of 8

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Motions for Bills of Particulars Are Generally Disfavored 3 Courts typically do not grant motions for a bill of particulars. 1/ E.g., JAMES WM. MOORE

4 ET AL., MOORE'S FEDERAL PRACTICE para. 607.07[1] (3d ed. 1999). The motions are frequently 5 an end-run around the restrictive scope of discovery of the Federal Rules of Criminal Procedure. 6 Id. The motions also allow a defendant access to the government's case far in advance of when 7 the defendant ordinarily would be entitled to the information (if at all). A bill of particulars 8 should not be used as another discovery tool. Finally, the government's bill of particulars 9 essentially "freezes" its case, as the contents of the bill and evidence at trial cannot differ 10 significantly. See, e.g., United States v. SMITH, 776 F.2d 1104, 1111 (3d Cir. 1985) (noting that 11 a bill of particulars cannot vary from the evidence presented at trial). 12 A court's ruling on a request for a Bill of Particulars is reviewed for an abuse of

13 discretion. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). When a court denies a 14 defendant's request for a Bill of Particulars, proof of abuse requires a showing of actual surprise 15 at trial and prejudice to the defendant's substantial rights by the denial. United States v. Colson, 16 662 F.2d 1389, 1391 (11th Cir. 1981). A bill of particulars is intended to apprise a defendant of 17 the charges in sufficient detail to minimize surprise at trial, to allow the defendant to prepare a 18 defense, and to protect against double jeopardy. United States v. Burt, 765 F.2d 1364, 1367 (9th 19 Cir. 1985); United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). 20 Whether to grant or deny the motion is within the discretion of the Court. The motion

21 should only be granted where a defendant lacks notice of the acts with which he or she is 22 charged. Where the information sought is available from other sources, such as discovery, the 23 motion should be denied. See, e.g., United States v. Marrero, 904 F.2d 251, 257 (5th Cir. 1990) 24 (holding that the district court did not abuse its discretion in denying the defendant's motion for 25 26 Rule 7(f) of the Federal Rules of Criminal Procedure provides: The court may direct the government to file a bill of particulars. The defendant may move for a bill or particulars 27 before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires. 28
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1 a bill of particulars because, among other things, defendant was not surprised by the information 2 at trial and at least some of the information was provided during discovery) ("[W]hen the 3 information requested is provided to the defendant in some other form, no bill of particulars is 4 required."). 5 II. Conditions Precedent to Granting a Bill of Particulars Are Not Satisfied 6 A bill of particulars has three purposes: to apprise the defendant of the specific charges

7 being presented so as to minimize surprise at trial, to aid the defendant in preparing for trial, and 8 to protect against double jeopardy. United States v. Long, 706 F.2d 1044, 1054 (9th Cir.1983). 9 Defendants are entitled to be granted a Bill of Particulars only when not doing so would result 10 in surprise or prejudice to the defendant at trial. See United States v. Burt, 765 F.2d 1364, 1367 11 (9th Cir. 1985) and United States v. Long, 706 F.2D 1044, 1054 (9th Cir. 1983). The defendants 12 in this case will not be surprised or prejudiced without a Bill of Particulars. 13 14 1. Defendants Are Aware of The Charges The Second Superseding Indictment in this case, dated January 19, 2005, contains 43

15 counts and a notice of special findings. This Indictment informs each defendant of the charges 16 and dates encompassing the crimes and acts charged. The Indictment is also 24 pages in length 17 and sets forth RICO offenses in Counts 1 and 2 against 12 individuals (including defendants 18 JOHNSTON, TOTH and SMITH). Counts 1 and 2 also inform all defendants of the enterprise, 19 the purpose, means, methods, and activities of the enterprise, and also goes on to inform them 20 of 20 acts of racketeering in furtherance of the purposes of the enterprise. Count 2 alleges RICO 21 conspiracy. Counts 3 through 8 allege violent crimes in aid of racketeering and Counts 9 22 through 43 allege other crimes against members of HAMC. 23 "Defendant [SMITH contends that he] is unable to ascertain from the face of the

24 indictment the nature of the case against him because of the lack of specificity and, thus, unable 25 to properly prepare a defense." See Defendant SMITH's Motion For A Bill Of Particulars, p. 26 3 (emphasis added). It is noteworthy that SMITH did not claim he was unaware of the charges 27 against him. More accurately, SMITH's plea is for more of the government's evidence, 28
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1 evidence that he is not entitled to or that has already been disclosed. For example, SMITH's 2 pleading claims "[d]espite diligent effort by counsel for ferret through the mountains of 3 discovery that the government has provided, there is no indication that Defendant SMITH, at 4 any time, attempted to murder any mongols or distribute any methamphetamine." See Defendant 5 SMITH's Motion For A Bill of Particulars, p. 8 (emphasis added). Yet in a previously disclosed 6 ATF report (ROI #33), paragraph 24, the report provides details of SMITH's involvement in 7 scouting and setting up Mongols in Laughlin prior to the shooting. 8 Between September 6 and 7, 2002, an undercover agent (UC) had conversations with

9 SMITH in which he discussed his participation in the Laughlin shootings that occurred at the 10 Harrah's Casino in April of 2002. SMITH said that he "made his bones in Laughlin" (gained 11 added respect and credibility with HAMC). SMITH said that he served as a scout prior to the 12 shooting, walking through the casino and reporting back to HAMC members on Mongols 13 members activity. Just prior to the shootout, SMITH said he served as "bait," walking directly 14 past a group of Mongols MC members alone to determine if they (Mongols MC) were in an 15 aggressive state of mind. If he were to be "jumped," by the Mongols MC, he had 50 HAMC 16 "brothers" waiting just outside to assist him in the fight. Some of the Mongols MC members 17 made comments to him as he passed, but that he just ignored their statements. SMITH said that 18 he had been ordered to leave his firearms in the saddlebags of his motorcycle while completing 19 his scout and bait duties, but that he had four firearms in his saddlebags that he brought in 20 anticipation of a shootout. 21 When the shooting did begin, SMITH said he was without a firearm, but attempted to

22 protect the "brother" next to him who was shooting at the Mongols MC members and to conceal 23 this "brother" from surveillance cameras and to watch the "brothers" back. Once SMITH was 24 released from police custody after the shootout, he called his wife Lydia and instructed her to 25 bring his Taurus pistol with the extended clip at the Gretchen's Inn, in Bullhead City, Arizona, 26 which was the HAMC headquarters during the 2002 Laughlin Run. 27 28
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Similarly, Defendant JOHNSTON by his own pleading acknowledges an understanding

2 of the charges. However, JOHNSTON requests additional evidence of date, time, place, and 3 persons relative to his alleged conspiratorial acts. These are requests for discovery, not 4 expressions of a lack of understanding of the charges. 5 6 2. Defendants Are Able To Prepare Their Defense The defendants claim that they cannot prepare defenses because they cannot comprehend

7 from the indictment and the discovery any inculpatory acts in which their clients have engaged. 8 Denial of a Motion for a Bill of Particulars is appropriate when defendants have information 9 equivalent to the information that has been provided in this case. See United States v. Robertson, 10 15 F.3d 862, 873-74 (9th Cir. 1994); reversed on other grounds, 514 U.S. 669 (1995), and 11 modified on other grounds, 73 F.3d 249 (9th Cir. 1996) (Indictment was sufficient because it 12 listed the names of alleged conspirators, the approximate dates on which the alleged illegal 13 conduct occurred, and the overt acts that comprised the illegal activity.); United States v. 14 DiCesare, 765 F.2d 890, 897-98 (9th Cir. 1985), amended on other grounds, 777 F.2d 543, (bill 15 of particulars not warranted when defendant seeks to obtain co-conspirator names, exact dates 16 and overt acts). The defendants are making the same requests of the government in the present 17 case. Similarly, the defendants are not entitled to a bill of particulars. 18 The defendants have made conclusory statements suggesting prejudice but have failed

19 to present any argument showing actual prejudice. Conclusory statements are insufficient to 20 show surprise or prejudice. United States v. Burt, 765 F.2d 1364 (9th Cir. 1985). The detailed 21 indictment and substantial discovery in the present case provide ample information for the 22 defendants to prepare their defenses and the defendants have not shown otherwise. 23 24 3. Notice is Adequate To Avoid Double Jeopardy The indictment sets out the offenses and acts committed in furtherance of those offenses

25 and the dates between which the acts were committed. The defendants in this case have far more 26 information than defendants in the typical case due to the detail provided in the indictment. 27 When the extent of discovery provided to the defendants is considered in addition to the detailed 28
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1 indictment the defendants have no claim that they are in danger of double jeopardy in this 2 prosecution or any subsequent prosecution. 3 III. Defendants are Not Entitled to the Requested Discovery 4 A bill of particulars cannot be used as a discovery device to acquire evidentiary details

5 about the government's case. See United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979); 6 United States v. Matlock, 675 F.2d 981, 986 (8th Cir. 1982); United States v. Colson, 662 F.2d 7 1389, 1391 (11th Cir. 1981)(requesting identities of unnamed co-conspirators, dates and 8 locations of conspiratorial acts, and other detailed information.). "A defendant is not entitled 9 to know all the Evidence (sic) the government intends to produce, but only the Theory (sic) of 10 the government's case." Giese, 597 F.2d at 1180, quoting Yeargain v. United States, 314 F.2d 11 881, 882 (9th Cir. 1963). 12 The indictment is adequate on its face and provides the Defendants adequate notice of the

13 criminal acts with which they are charged. Defendants do not need any further explanation to 14 prepare a defense, avoid surprise at trial, or prevent double jeopardy. Moreover, the indictment 15 gives the approximate time span of the conspiracy, its object, its means, several overt acts, 16 among other specific information. Finally, Defendants have been given voluminous discovery. 17 Some of this discovery answers the other questions that Defendants seek in these motions. 18 Defendants are not entitled to a bill of particulars where they already have access to the 19 information sought. See, e.g., Marrero, 904 F.2d at 257 (5th Cir. 1990) ("[W]hen the information 20 requested is provided to the defendant in some other form, no bill of particulars is required."). 21 Therefore, the defendants are attempting to obtain details that the government is not required to 22 disclose in advance of trial or that has already been disclosed. 23 Given that such information has already been furnished to these defendants through

24 discovery and by orders of this Court, an order for a bill of particulars would create duplication 25 of efforts, cause the government to devote time and effort into synthisizing information the 26 defense already has for the most part, and turn the government into a quasi paralegal for the 27 defense. 28
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The Indictment alleges the enterprise, the members, the purposes, and the methods. No

2 one can be surprised as to what the government is pursuing through this Indictment. The 3 indictment and discovery already provided offer the defendants more than they are entitled to 4 receive from the government. The defendants' motions for Bills of Particular must be denied. 5 6 7 8 9 10 11 12 13 14 15 16 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/ Keith Vercauteren KEITH VERCAUTEREN 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], [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 22 s/ Keith E. Vercauteren KEITH E. VERCAUTEREN 23 24 25 26 27 28
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