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

RENEWED MOTION FOR DISCLOSURE
OF EXCULPATORY INFORMATION

COME NOW the defendants to move this Court to compel the government to disclose certain specific 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. On October 31, 1996, the defendants were convicted of occupying National Forest System Land without a "special use authorization" in violation of 36 CFR Sec. 261.10(j).

2. Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, the defendants have filed a motion to set aside the

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verdicts and enter judgments of acquittal.

3. It is the contention of the defendants that 36 CFR S261(j) violates the First Amendment of the United States Constitution and that that regulation was unconstitutionally enforced against these defendants.

4. At issue on this motion is the Forest Service's selective enforcement of the Code of Federal Regulations Sec. 251 et seq. and Sec. 261 et seq.

5. The defendants have previously filed a Brady/Kyles motion requesting certain information:

(a) 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;

(b) 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.

6. In response to the defendants' Supplemental Motion for Disclosure of Exculpatory Information, the government provided the defendants with a copy of a training video tape which the defendants contend encourages the selective enforcement of S261.10(j) against members of the Rainbow Family.

7. In response to the defendants' Supplemental Motion for Disclosure of Exculpatory Information, counsel for the government

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disclosed that it is in possession of a training memoranda prepared by Special Agent Malcolm Jowers, United States Forest Service. Special Agent Jowers was the agent in charge of the operation which resulted in the issuance of the citations against these defendants. The fact that Agent Jowers has prepared a memoranda dealing with the enforcement of this regulation is evidence which supports the defendants' contention that the regulation is selectively enforced against the Rainbow Family.

8. In response to the defendants' Supplemental Motion for Disclosure of Exculpatory Information, counsel for the government further disclosed that it is in possession of a number of "After Action Reports," dealing with prior Rainbow Family gatherings and efforts to enforce the "special use authorization" requirements at those gatherings. The fact that the government has compiled those "After Action Reports" is evidence of selective enforcement of these regulations. Counsel for the defendants fully expect that the contents of those reports will be additional evidence of the Forest Service's criteria for enforcing this regulation against these defendants.

WHEREFORE, the defendants move this Court to compel the government to disclose to them the following:

(a) All training memoranda prepared by Special Agent Malcolm Jowers;

(b) All "After Action Reports" or other reports prepared by the United States Forest Service following any Rainbow Family gatherings on National Forest System Lands;

(c) Any other exculpatory information previously requested by the defendants but not heretofore
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disclosed by the government.

Respectfully submitted this 7th day of November, 1996.

PITTS, HAY, HUGENSCHMIDT
& DEVEREUX, P.A.
P.O. Box 2868
Asheville, North Carolina 28802
Telephone: (7`04) 255-8085

By: (signed)
Sean P. Devereux

BRIAN MICHAELS
259 East 5th Avenue
Eugene, Oregon 97401
Telephone: (541) 687-0578

By: (unsigned)
Brian Michaels

Attorneys for the Defendants


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Renewed 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 7th day of November 1996.

(signed)
Terri M. Pettis
Legal Assistant