Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

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Barbara Hull, State Bar No. 011890 86 West University Drive, Suite 101A Mesa, Arizona 85201 Telephone: (480)834-0002 Facsimile: (480)834-0003 Attorney for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT MCKAY, Defendant.

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Case No.: CR-03-1167-16-PHX-DGC DEFENDANT McKAY'S MOTION TO DISMISS FOR DISCOVERY VIOLATIONS (Assigned to The Honorable David G. Campbell) (Evidentiary Hearing/Oral Argument Requested)

Defendant, Robert McKay, through undersigned counsel, hereby moves that this Court dismiss Counts Six and Seven based upon the discovery violations by the Government as more fully set forth in the attached Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 14th day of December, 2005. ____/s/____________________________ Barbara L. Hull, Attorney for Mr. McKay

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MEMORANDUM OF POINTS AND AUTHORITIES Relevant Background On or about November 18, 2003 Mr. McKay was indicted on a charge of Violent Crime in Aid of Racketeering, 18 U.S.C. 1959(a)(3) in connection with an alleged assault in furtherance of and for the purpose of maintaining or increasing his position in an enterprise engaged in racketeering activity as defined under Title 18, U.S.C. Sections 1961 and 1959, to wit: the Hell's Angels Motorcycle Club in Arizona. McKay allegedly had committed an assault with a dangerous weapon against William Potter on June 21, 2000. As a result of a later conversation with S.A. Dobyns, Mr. McKay was charged in the Superseding Indictment with additional Counts Eight and Nine, violations of Threatening a Federal Law Enforcement Officer, 18 U.S.C. 115(a)(1)(B) and 115(b)(1)(4) and Violent Crime in Aid of Racketeering, 18 U.S.C. 1959(a)(4). This motion only addresses the discovery issues as they relate to the original charges of assault regarding Potter (Counts Six and Seven). The government alleges that McKay and William Gary Potter, DOB 02/09/1956, were yelling profanities at each other in front of McKay's business and that McKay used a flashlight to hit Potter. Potter refused to assist the prosecution. Emergency medical service personnel were called to the scene.

Potter was offered and refused medical treatment at the scene and refused to

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cooperate with law enforcement officers who, not so curiously to the defense, just happened to be situated within a matter of feet of the alleged assault, watching as it occurred. According to written reports, Mr. Potter simply walked away, refusing to cooperate with law enforcement. The allegations that the flashlight is a dangerous weapon require the defendant to examine the "dangerous weapon". Prior to the filing of the instant motion, this defendant has repeatedly requested discovery, including the specific request regarding information about Mr. Potter. (See Joint Discovery Matrix.) The Court has ordered the discovery requested to be provided to Defendant by the United States in its Order dated August 12, 2005. However, to date the discovery has been only partially provided. The government has been ordered to produce the flashlight. In fact, at the October 21, 2005 status conference, Mr. Keith Vercauteren avowed in open court that he would produce the flashlight. The Court ordered all discovery to be disclosed by November 4, 2005. The flashlight has not been produced. The Government also has alleged that the injuries to Potter were serious bodily injuries. The defense needs to have and has repeatedly requested records of those injuries to determine what, if any, injuries were sustained and to what extent. Either the injuries to Potter were serious enough to warrant medical attention, and such medical attention was administered (with corresponding medical reports

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generated), or the written reports are correct and Mr. Potter simply walked away from the scene while law enforcement was still present and investigating. Both cannot be true. The defendant has a constitutional right to defend the allegations against him. Without this evidence, the defendant is denied his constitutional right to a fair trial and effective assistance of counsel. The defense has discovered that William Gary Potter received considerable leniency in Pima County Superior Court Case Number 99-1473 01-TUC-DCB. This matter is sealed by the Court. Clearly defendant is entitled to the plea agreement between the parties, and any motion and orders concerning the plea agreement should have been provided. Potter was allowed to travel via motorcycle during his pretrial release on out of state motorcycle trips. The records of this travel are very relevant to Potter's potential for bias in the case. Additionally, Potter received at least three separate Rule 11 psychological evaluations in that case. Mr. McKay has previously requested these documents and the Court has ordered the same be provided. The Government still has not provided that

evidence despite defense requests. Without that evidence, Mr. McKay is denied his constitutional right to a fair trial and effective assistance of counsel.

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Legal Argument Defendant McKay asserts that the State's actions violate Brady v. Maryland, 373 U. S. 83, 87, which held that the prosecution's suppression of evidence requested by and favorable to an accused violates due process where the evidence is material to either guilt or punishment, irrespective of the prosecution's good or bad faith. In this situation, material requested by the defendant has been ordered by the Court to be produced prior to trial, the Court having already made the determination of materiality and/or the Government having agreed to disclose the materials. Months and several disclosure deadlines have passed and the

prosecution still has not provided the evidence. The Federal Rules of Criminal Procedure Rule 16 (d)(2) governs failure to comply with discovery. This rule provides the Court with four remedies to address discovery violations. The sanctions are 1) order that the party to permit the discovery or inspection; specify its time, place and manner and prescribe other just terms and conditions; 2) grant a continuance; 3) prohibit that party for introducing the undisclosed evidence; or 4) enter any other order that is just under the circumstances. The Court has requested the prosecution in this matter on other discovery issues to certify that all discovery has been provided and to have a supervisor come to court to verify all discovery has had been provided. The supervisor was unable

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to do so. This Court has ordered this discovery to be provided. The Government has routinely disregarded this Court's Orders. It would be meaningless to enter yet another order that will not complied with. The second option of granting a continuance is not in the best interest of McKay. As argued to the Court in previous matters, he will have served more time in pretrial custody than he would be sentenced to if convicted. Mr. McKay is requesting the Court to order the government not be allowed to introduce any evidence relating to Mr. Potter, the flashlight or the medical records. The result of this remedy would be a dismissal of Counts Six and Seven against Mr. McKay. Although this is a drastic measure, it is the only remedy that guarantees McKay's constitutional rights to a fair and speedy trial and effective assistant of counsel. More importantly, this Court has threatened this measure if the November 4, 2005 deadline was not respected by the Government. The time has come to enforce the Court's Orders by sanctioning the Government's cond uct. WHEREFORE, defendant McKay prays the Court dismiss Counts Six and Seven pursuant to Federal Rules of Criminal Procedure Rule 16 (d) (2) and for such other and further relief that the Court deems appropriate under the circumstances.

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RESPECTFULLY SUBMITTED this 14th day of December, 2005.

_____/S/______________________ Barbara L. Hull Attorney for Mr. McKay Original filed electronically this date. Courtesy copy of the foregoing sent via email this date to: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, Arizona 85003-0001 at: [email protected] Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected] ____/S/___________________

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