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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA )CRIMINAL NO: H-92-152(filed 8/13/92) ) v. )Violations: )15 U.S.C. 1 JOHN J. JOHNSON, )18 U.S.C. 1001 )18 U.S.C. 2(b) Defendant. )18 U.S.C. 371 GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR PRESERVATION OF ROUGH NOTES AND OTHER MATERIALS The United States of America hereby responds to Defendant's Motion for Preservation of Rough Notes and Other Materials. In his motion, the defendant requests that the Court instruct every attorney and investigative agent for the United States in this case to: preserve all field notes, memoranda, or other recordings of facts and other information gathered during the investigation of the incidents which led to this indictment, and to prevent the same from being destroyed so that such recordings will be available to counsel for purposes of cross examination and will preserve the Defendant's right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. Def. Mot. at 1. The government attorneys have preserved all of their notes pertaining to this investigation and will continue to do so through the trial of the defendant. Additionally, the government attorneys have requested that the agents of the United States Department of Agriculture,


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Office of Inspector General, Investigations, assisting them retain their notes pertaining to this investigation through the trial of the defendant. The government is fully aware of its obligations under the Jencks Act, 18 U.S.C. 3500, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and therefore objects to this request and to the necessity for preservation of rough notes to the extent they do not constitute discovery materials or are not otherwise subject to disclosure. See, e.g., United States v. Newman, 849 F.2d 156, 160 (5th Cir. 1988); United States v. Martin, 565 F.2d 362, 363 (5th Cir. 1978); United States v. Gates, 557 F.2d 1086, 1089 (5th Cir. 1977), cert. denied, 434 U.S. 1017 (1978). Moreover, while the government has complied with the defendant's request for the preservation of rough notes, the government asserts that this information is specifically exempted from disclosure pursuant to Fed. R. Crim. P. 16(a)(2). See also Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393 (1947); United States v. Pierce, 893 F.2d 669, 675 (5th Cir. 1990); United States v. Friedman, 593 F.2d 109, 120 (9th Cir. 1979). Accordingly, because the government has


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represented its intention to preserve all of notes pertaining to the investigation, and because the defendant's request encompasses information not subject to disclosure, the motion should be denied. Respectfully submitted, "/s/" JANE E. PHILLIPS "/s/" JOAN E. MARSHALL "/s/" MARK R. ROSMAN Attorneys U.S. Department of Justice Antitrust Division 1100 Commerce Street, Room 8C6 Dallas, Texas 75242-0898 (214) 767-8051


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Government's Response to Defendant's Motion for Preservation of Rough Notes and Other Materials and proposed order has been served upon and was sent via Federal Express this day of August, 1992, to: Joel M. Androphy, Esq. Berg & Androphy 3704 Travis Street Houston, Texas 77002 "/s/" JANE E. PHILLIPS Attorney


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA ) CRIMINAL NO: H-92-152 ) v. ) Violations: ) 15 U.S.C. 1 JOHN J. JOHNSON, ) 18 U.S.C. 1001 ) 18 U.S.C. 2(b) Defendant. ) 18 U.S.C. 371 ORDER Upon consideration of the Defendant's Motion for Preservation of Rough Notes and Other Materials and the Government's Response, The Defendant's Motion is hereby DENIED. DONE AND ENTERED THIS day of 1992. ____________________________ UNITED STATES DISTRICT JUDGE