North Carolina Rainbow Case

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA

UNIITED STATES OF AMERICA
vs.                                      DOCKET NO. F1469799
JOHN E. JOHNSON, III

UNITED STATES OF AMERICA
vs.                                      DOCKET NO. F1789813
WILLIAM V. LeTEMPT          

UNITED STATES OF AMERICA
vs.                                      DOCKET NO. F1790048
JEFFERY O. PIKE

UNITED STATES OF AMERICA
vs.                                      DOCKET NO. F1469792
DANIEL GALLAGHER

SUPPLEMENTAL MOTION FOR DISCLOSURE
OF EXCULPATORY INFORMATION

COME NOW the defendants to move this Court to compel the government to disclose certain exculpatory information to the defendants. This motion is made pursuant to the holdings in Brady v. Maryland and Kyles v. Whitley and related case law. In support of this motion, the defendants show unto this Court that:

1. The defendants are charged with occupying National Forest System land without a "special-use authorization" in violation of 36 CFR S261.10(j).

2. The defendants filed a timely motion for the disclosure of Brady/Kyles material.

3. The defendants have moved for the dismissal of this

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charge on the grounds that Sec. 261.10(j) is selectively enforced by the United States Forest Service.

4. Evidence that the Forest Service selectively enforces the regulation would tend to exculpate the defendants.

5. Therefore, the defendants respectfully contends that they are entitled to the following information which is within the possession of the government or could readily be obtained by the government:

a. a list of all the groups to whom S251.50 (c)(3) "special use" group event permits have been issued by the Forest Service for use or occupancy of National Forest System lands within the Pisgah National Forest during the last five years;

b. a list of all the groups to whom S251.50 (c)(3) "special use" group event permits have been issued by the Forest Service for use or occupancy of all National Forest System lands during the last five years;

c. copies of memoranda from the United States Department of Justice or the United States Department of Agriculture issued to Forest Service personnel within the last five years regarding Forest Service dealings with the Rainbow Family. This request specifically includes but is not limited to those memoranda consulted by-Forest Service Law Enforcement Officers Malcolm Jowers, Wilt Stribling and Frank Roth in preparation for and during their dealings with Rainbow Family members in June, 1996;

d. a-copy of the August 23, 1996 letter from Dennis G. Linder, Branch Director, Federal Programs' Branch, United States Department of Justice to Mark T. Calloway, United States Attorney for the Western District of North Carolina. In Mr. Calloway's September 3, 1996 response to Mr. Linder's letter, the United States Attorney writes:

"Thank you for your letter of August 23, 1996 concerning the prosecution involving the Rainbow Family. I've talked with Assistant United States Attorney Tom Ascik who is handling the criminal prosecution. He is well aware of your interest, as well as the interest of the Department of Agriculture."

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The fact that Washington-level officials of the Department of Justice and the Department of Agriculture have taken a special interest in the prosecution of five petty offenses is probative of selective prosecution. Since 1984, the undersigned has been defending citizens charged with petty offenses without encountering in any such prosecution the "interest" of a Department of Justice Branch Director.

e. any other such correspondence between Department of Justice or Department of Agriculture officials and local Forest Service personnel or the personnel of the Office of the United States Attorney in the instances when that correspondence demonstrates a Washington- level interest in the local enforcement of "special use" regulations.

f. the details of any training provided local Forest Service personnel with regard to the enforcement of the "special use"/group use permits, including, but not limited to, training dealing with the Rainbow Family's use or occupancy of Forest Service System lands.

g. information regarding how many officers were deployed to the Rainbow encampment on the relevant dates, how they were deployed, whether and why they concealed themselves, whether and how they conducted secret surveillance (e.g. whether camouflage and night vision binoculars were used).

h. the pages missing from the Case Report of Forest Service Officer Wilt Stribling provided to the defendants in "open file" discovery, if there are pages missing. The pages provided are numbered 10-12. Presumably, there were pages 1-9; perhaps there were pages after Page 12. It may be that the numbers reflect separate versions of the same essential report for each defendant.

The defendants respectfully move this Court to compel the government to disclose the above information. In the alternative, the defendants move the Court to review in camera the above material, to compel disclosure to the defendants of information which the Court finds to be exculpatory and to seal the remaining information for appellate review.

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Respectfully submitted this 23rd day of October, 1996.

PITTS, HAY, HUGENSCHMIDT
& DEVEREUX, P.A.
Attorneys for the Defendant

By: (signed)
Sean P. Devereux
P.O. Box 2868
Asheville, North Carolina 28802
Telephone: (704) 255-8085

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Supplement Motion For Disclosure of Exculpatory Information was served on the following by depositing a copy in United States Postal Service in a properly addressed envelope with adequate postage thereon, or [x] by leaving same at his office with a responsible partner or employee.

Mr. Thomas R. Ascik
Assistant United States Attorney
100 Otis Street, Room 207
Asheville, NC 28801

This 23rd day of October, 1996.

(signed) Terri M. Pettis
Legal Assistant