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 effec	tive 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, 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 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

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

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