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 SUPPLEMENTAL MOTION TO DISMISS LAUGHLIN PREDICATE ACT (Assigned to The Honorable David G. Campbell)

Defendant,

Robert

McKay,

through

undersigned

counsel,

hereby

supplements all previous motions regarding the Laughlin incident, including the motion to dismiss filed by Defendant Smith, as follows: Attached hereto is a copy of a letter hand-delivered on October 26, 2005 to Timothy Duax of the United States Attorney's Office regarding the videotape evidence of the Laughlin incident of 4/27/02 specifying the problems with the tapes provided previously. Mr. Duax stated he would personally travel to Las Vegas and report back. On December 7, 2005, undersigned and Charles Whiteman met with Timothy Duax in his office to retrieve what Mr. Duax claimed satisfied the defense request of October 26th. Mr. Duax provided what he claimed to be an entire set of the 51 tapes disclosed in Nevada, claiming they were made by Mr.

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Document 944

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Tipton at All Around Video after Mr. Tipton retrieved the original videotapes from LVPD evidence. Mr. Duax had not compared those to the 46 of 51 tapes disclosed on the last attempt. Mr. Duax also provided for the first time 4 compact discs from the Las Vegas Police Department which are copies of numerous videotapes in evidence at LVPD. Mr. Charles Whiteman reviewed the first of the 51 tapes to discover that, while it is labeled the same as the first of the 51 previously provided, it contains no information whatever like the first previously provided. In fact, it is a recording of an entirely different room. Therefore, this appears to be an entirely different set of tapes, not the purported complete original 51 as stated by Mr. Duax. Additionally, at the December 7th meeting, Mr. Duax provided what he claimed to be chain of custody information on all tapes through November 29, 2005. That is the date Mr. Tipton supposedly checked out the 51 tapes himself from Las Vegas Police Department evidence room. Quite the contrary, however, the chain of custody information does not begin until May 16, 2002. The Las Vegas Police Department, by Detective Rector, took custody of the videotapes from Harrah's on April 27, 2002, and the videotapes from the Golden Nugget on April 28, 2002. No chain of custody information prior to May 16, 2002 has been provided, making chain of custody incomplete. Finally, previously provided to the defense is what is identified in the matrix as a quad tape from VCR 42. The tape provided begins after the Laughlin shooting, wherein law enforcement officers are shown escorting several individuals wearing Mongols attire to the security and surveillance area in Harrah's. Harrah's security personnel are shown opening the door to a room near the surveillance room and checking the identification documents of the law enforcement personnel. Upon checking the identification, the law enforcement and
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Mongols are permitted by Harrah' s security personnel to gain entrance into this back room. Mr. Duax was informed that the defense requires the tape from that camera that should run from approximately 8:00 p.m. on Friday, April 26th until 2:00 a.m. Saturday, April 27th, 2002. It takes months for the defense to review videotapes. If this Court does not dismiss the Laughlin incident predicate act, it will take even longer for the defense to review this new and clearly different videotape evidence ­ which is still not complete. On behalf of Mr. McKay who remains in custody, the Government' s conduct is not only outrageous and violative of Federal Rules, of this Court' s Orders and the Government' s own promises, it violates Mr. McKay' s rights to a speedy trial, due process, and those of his co-defendants. For these reasons, Mr. McKay joins and supplements all previous requests to dismiss the Laughlin incident as a reasonable sanction for the Government' s continuing discovery failures. RESPECTFULLY SUBMITTED this 12th 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]

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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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