Free Motion to Dismiss All Charges - 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 MOTION TO DISMISS FOR VIOLATION OF RIGHT TO SPEEDY TRIAL (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby moves this Court to dismiss Counts Six, Seven and Eight of the Superseding Indictment based upon the Governments' violations of Mr. McKay's Sixth Amendment Rights to a Speedy Trial. This motion is based upon the attached memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 12th day of December, 2005. _____/s/____________________________ Barbara L. Hull, Attorney for Mr. McKay

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MEMORANDUM OF POINTS AND AUTHORITIES On November 18, 2003 Mr. McKay was indicted on a charge of Violent Crime in Aid of Racketeering, 18 U.S.C. 1959(a)(3). Under that charge, Mr. McKay was indicted in connection with a charge of committing an 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: with the Hell's Angels Motorcycle Club in Arizona, when McKay allegedly had committed an assault with a dangerous weapon against a victim, William Potter, on June 21, 2000. The first indictment was filed November 18, 2003. 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). On October 4, 2004 a superseding indictment was filed charging Mr. McKee with the above two counts and a third of 18:U.S.C. sections 115(a)(1)(B) and 115(b)(1)(4) Threatening a Federal Law Enforcement Officer. This motion only addresses the speedy trial issue. It is filed, however, in conjunction with the multiple discovery issues addressed in other motions, which issues impact the speedy trial issue.

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The right to a speedy trial is constitutionally guaranteed by the Sixth Amendment of the United States Constitution. Four factors underpin a

constitutional claim of denial of speedy trial: the length of delay; the reason for the delay; the defendant's assertion of his or her right to a speedy trial; and t he prejudice to the defendant. Barker v.Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972). The U.S. Supreme Court balanced the considerations set forth in Barker in Doggett v.United States , 505 U.S. 647, 112 S.Ct. 2686 (1992). The balancing test weighs the conduct of both the prosecution and the defendant, mindful of the interplay of the factors, to determine which claim prevails. The Doggett Court found a two-part inquiry necessary for the length of delay factor. First it is necessary to be sufficient to even trigger an analysis of the Barker factors. "Depending on the nature of the charges, the lower courts have generally found post-accusation delay `presumptively prejudicial' at least as it approaches one year." Doggett, 505 U.S. at 652, 112S.Ct. at 2691 n.1, emphasis added. Charges were filed in November of 2003 against Mr. McKay, and the superseding indictment was filed September 30, 2004. A trial date of April 25, 2006 is pending. Mr. McKay has made a showing sufficient to trigger the analysis. As a factor among several, the court considers the extent to which the delay stretches beyond the bare minimum needed to trigger the judicial examination of the claim. A United States District Court, in granting a motion to dismiss in a

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distribution of crack cocaine, found that a two year post-indictment delay was relevant. "Closely related to length of delay is the reason the government assigns to justify the delay." U.S. v. Shelton, 820 F. Supp. 461, 464-65 (1992). The Eighth Circuit recently visited this issue in U.S. v. Walker, 92 F.3d 714 (1996). Carlos Walker was charged with possession with intent to deliver cocaine base. Released on bail, he fled the jurisdiction. Walker was arrested and filed a motion to dismiss claiming a violation of his right to a speedy trial. The Walker Court found the delay of 37 months was sufficient as both a triggering event and "a factor which weighs in Walker's favor." Walker, 92 F.3rd at 717 (1996). In this case the interval between the issuance of the warrant and the trial date are complicated by the filing of the superseding indictment. The interval from the original arrest to the second arrest is approximately ten months; however the time from the second arrest to the trial date is one year and seven months. At this time the prosecution has not provided all the discovery that has been ordered by the Court. Defendant is at a clear disadvantage on the speedy trial issue. Given that the Government has not been able to produce in the last two years, despite numerous Court Orders to do so, it is unlikely the Government will provide discovery by April 25, 2006. This is amount of time of delay is more than sufficient to trigger a judicial review.

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The second consideration is the reason for the delay. If the defendant is at fault, no further analysis is necessary. If it is the government's fault, it we ighs in favor of the defendant: intentional delay will weigh heavily against the

government. Negligence will be weighted less heavily, "but is still a considerable factor in the weighing process." Barker, 407 U.S. at 531, 92 S.Ct. 2192. How can the defendant be at fault when the government has failed to provide discovery? The defendant is charged with acts that occurred in 2000, and yet the government has not provided the evidence of the acts from 2000. The final inquiry is prejudice to the defendant. Prejudice is found in three modalities: (1) incarceration ­ actual or conditions of pretrial release; (2) anxiety or (3) impairment of defenses ­ actual or presumed. If prejudice is found in ANY of the three, it weighs in favor of the defendant. In Mr. McKay's case, there is prejudice to him because of the length of the pretrial incarceration and in the resultant impairment of his defense. Mr. McKay contends that time has eroded memories and physical evidence resulting in actual prejudice. Mr. McKay did not cause the delay, asserted his right to a speedy trial at the first available opportunity, and is entitled to obtain dismissal to vindicate his constitutional right to a speedy trial. The Shelton court, quoting Doggett, stated that " `when the presumption of prejudice, albeit unspecified, is neither exterminated as by the defendant's

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acquiescence...nor persuasively rebutted, the defendant is entitled to relief.'" Shelton, 820 F. Supp, at 466. The Shelton Court went on: The Doggett position on how much prejudice a defendant must show to make out a successful claim that his speedy trial right has been violated, exemplifies the Court's position in Wingo that none of the factors alone is either necessary or sufficient to find a deprivation of the right to a speedy trial. "Rather they are related factors and must be considered together with such other circumstances as may be relevant." Wingo, 407 U.S. 533, St. Ct. at 2193, 3 L.Ed.2d at 118. Shelton, 820 F.Supp. at 466. And the Court continued: When the Wingo factors are considered together with the relevant circumstances, it is the Court's conclusion that the indictment in this case must be dismissed. The government's two -year unjustified delay was challenged by the defendant in a timely manner, and prejudiced his ability to defend himself from the charges, therefore dismissal is necessary as the only remedy available for the government's violation of Shelton's Sixth Amendment right to a speedy trial. Shelton, 820 F.Supp. at 466. The State in Shelton argued that the defendant could show no actual prejudice save that which happens to all with the passage of time. But the Doggett Court makes it clear that prejudice is not necessary in all instances. The Doggett Court dealt with this very point in a footnote: While the government ably counters Doggett's efforts to demonstrated particularized trial prejudice, it has not, and probably could not have affirmatively proved that the delay left his ability to defend himself unimpaired. CF. Uviller, 72 Colum.L.Rev., 1394-1395.

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CONCLUSION Judicial review is required as the time delay approaches a year. Vindication of the interests protected by the speedy trial clause require more than mere happenstance. The combination of the delay, which is considerable, government omission, and its total failure affirmatively to provide the defendant with discovery in a timely fashion, where very little effort would have located the evidence, deprived the defendant of his right to a speedy trial. He is entitled to dismissal. RESPECTFULLY SUBMITTED this 13th day of December, 2005.
______/S/___Barbara L. Hull_____________

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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