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
-1-
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."
-2-
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.
-3-
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