Free Motion to Sever Defendant - 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 SEVER (Assigned to The Honorable David G. Campbell)

Pursuant to Federal Rules of Criminal Procedure 8(b) and 14, Defendant, Robert McKay, through undersigned counsel, hereby moves that this Court sever his trial from those of his co-defendants for the reasons more fully set forth in the attached Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 12th day of December, 2005.
______/S/___Barbara L. Hull_____________

Barbara L. Hull, Attorney for Mr. McKay

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MEMORANDUM OF POINTS AND AUTHORITIES I. RELEVANT BACKGROUND Defendant McKay incorporates herein the factual assertions contained in the motion to sever filed by Defendant Toth on October 31, 2005, entitled "C. The Charges Against Co-Defendants" and "D. Summary of the Evidence Against the Co-Defendants" but for the assertion that Mr. McKay was "charged with inflicting an actual injury against another person" in Count 9, threatening a law enforcement officer. Count 8, the alleged assault of Potter is the only crime charged against Mr. McKay which alleges injury. Defendant McKay adds that the government has never alleged that he had anything to do with the Laughlin incident or the Garcia murder. He has only been charged with an assault against Mr. Potter, which was reduced to a misdemeanor in state court when Mr. Potter, a known drug addict, failed to cooperate with prosecution, and with the purportedly un-recorded, un-surveilled conversation at Club Congress on August 31, 2004 with Agent Dobyns wherein Mr. McKay called Dobyns a "snitch," a term for a Hells Angel turned for testimony, not a term for a law enforcement officer. The alleged assault against Potter claims serious bodily injury to Potter, yet Tucson police reports indicate Potter refused medical treatment, and no evidence of any form has been provided the defense evidencing injury to Potter.

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The failure of the government to provide discovery regarding Mr. Potter, despite repeated requests dating back to Mr. Redondo's representation of Mr. McKay, is more fully set forth in other discovery pleadings. Suffice it to say that the government has not provided the Rule 11 proceedings involving Mr. Potter in state court nor the extensive criminal history of Mr. Potter. The purported conversation with Agent Dobyns is the subject of the Massiah motion and the Motion for Protective Order filed by Mr. McKay. Mr. McKay incorporates those facts and arguments here. Defendant McKay incorporates herein the Law and Argument contained in Toth's motion to sever. The Indictment in this case lists 47 separate crimes and names 16 defendants. The twin centerpieces of the Indictment are the RICO and RICO conspiracy charged against some of Mr. McKay's co -defendants in Counts One and Two and the VCAR offense charged against Mr. McKay. In between these two RICO allegations, the Indictment charges an illegal motorcycle club and substantive violations of the laws proscribing illegal purchases of firearms, narcotics and stolen property and extortion. Between approximately June 2002 and July 2003, ATF and task force personnel conducted an extensive proactive undercover investigation operation targeting members and associates of the Hells Angels Motorcycle Club in Arizona.

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Mr. McKay is named in the RICO violations charged in Counts One but not Count Two. Indeed, Mr. McKay is not again named in the Indictment until Counts Six, Seven and Nine. The only allegations against Mr. McKay are violations of 18 U.S.C. Sections 1961 and 1959 violence in Aid of Racketeering and 18 U.S.C. Section 1503 which prohibits retaliation against a witness. The only predicate acts in the RICO charge against him, Count Six, are also alleged assault in furtherance of and for the purpose of maintaining or increasing his position in an enterprise engaged in racketeering to wit: the HAMC in Arizona, whereby McKay is alleged to have committed an assault with a dangerous weapon against victim William Potter on June 21, 2000. Because the Indictment fails to allege any joint criminal activity between Mr. McKay and any of the co-defendants, the joinder of Mr. McKay and those codefendants is improper. Alternatively, even if joinder is technically proper, a severance should be granted to ensure Mr. McKay's right to a fair trial free from unnecessary prejudice. II. LEGAL DISCUSSION The RICO offenses alleged in Counts One and Two as well as the related substantive offenses set out in Counts Three through Five have been misjoined with the RICO offense alleged in Count Six, Seven and Nine, since those counts do not arise from "the same series of acts or transactions," as required by Federal Rule

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of Criminal Procedure 8(b). In addition, the joint trial of these separate RICO charges and the joint trial of all defendants on all counts would severely prejudice Mr. McKay in the presentation of his defense. A. Misjoinder In cases involving multiple defendants, the propriety of joinder must be tested under Federal Rule of Criminal Procedure 8(b), since Rule 8(a), governing the joinder of offenses, has no application to multi-defendant cases. See, e.g., United States v. Saleh, 875 F.2d 535, 538 (6th Cir. 1989); see generally 1 C. Wright, Federal Practice and Procedure: Criminal Section 144 (2d ed. 1982). Thus, it is not a sufficient basis for the joinder of counts in a multi-defendant indictment to show that the counts meet the test of Rule 8(a), that the offenses are "the same or similar in character[.]" Instead, the more demanding test of rule 8(b) must be satisfied. That rule, in relevant part, provides: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. As the courts have observed, Rule 8(b) was enacted "to prevent the accumulation of prejudice that occurs when several defendants are charged with similar but unrelated offenses." See, e.g., United States v. Avery, 760 F.2d 1219, 1222 (11th Cir. 1985). Because this inherent prejudice increases exponentially in multi-defendant cases, Rule 8(b) was "designed to prevent `mass trials.'" United
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States v. Whitehead, 539 F.2d 1023, 1026 (4th Cir. 1976) (quoting United States v. Ingram, 272 F.2d 567, 570-71 (4th Cir. 1959)); see generally Note, Harmless Error and Misjoinder Under the Federal Rules of Criminal Procedure: A Narrowing Division Of Opinion, 6 Hofstra L. Rev. 533, 563 (1979) (demonstrating that one of the primary functions of Rule 8 was "the deterrence of `mass trials'"). To determine if joinder is proper under the terms of Rule 8(b), the courts must determine whether the "act(s) or transaction(s)" that each defendant allegedly participated in are "the same." Rule 8(b), however, does not itself define the terminology "same act(s) or transaction(s)" -- part of what Judge Friendly caustically called the rule's "rather inept drafting."United States v. Granello, 365 F.2d 990, 994 n. 2 (2d Cir. 1966).1 Nor are the Advisory Committee Notes helpful in this regard since they reveal only that the rule is "a restatement of existing law." The pre-existing law, as well as the cases decided since Rule 8 was enacted, have defined the terms "same acts or transactions" in a variety of related ways. For example, some courts, drawing an analogy to the joinder of offenses under Rule 8(a), have said that acts or transactions are the "same" if they are so interconnected in time, place, and manner as to constitute a "common scheme or plan." See, e.g.,

Judge Friendly was also critical of the rule's deficient syntax, since under the normal rules of grammatical construction, the phrase "constituting an offense or offenses" would be read as modifying the immediately preceding phrase "same series of acts or transactions," but not the singular "same act or transaction." See United States v. Granello, 365 F.2d at 994 n. 2. Such a reading, of course, would lead to bizarre results and has been rejected by the courts. See, e.g., United States v. Corral-Martinez, 592 F.2d 263 (5th Cir. 1979).

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United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir. 1985); United States v. Ford, 632 F.2d 1354, 1372 (9th Cir. 1980); United States v. Jackson, 562 F.2d 789, 796 (D.C. Cir. 1977). Other courts frame the issue as whether the factual

allegations establish a "common link" between the defendants. See, e.g., United States v. Andrade, 788 F.2d 521, 529 (8th Cir. 1986); United States v. Tashjian, 660 F.2d 829, 833 (1st Cir. 1981); cf. Pacelli v. United States, 588 F.2d 360, 367 n. 20 (2d Cir. 1978) (applying "necessary linkage" test). Other courts inquire whether "substantially the same facts must be adduced" against each of the joined defendants. See United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977) (citing United States v. Gentile, 495 F.2d 626 (5th Cir. 1974)). What each of these approaches has in common is that each focuses on the facts underlying the charge that gives rise to joinder. See generally 1 C. Wright, Federal Practice and Procedure: Criminal Section 144 (2d ed. 1982 & 1991 Supp.); see, e.g., United States v. Andrews, 765 F.2d 1491 (11th Cir. 1985) (for joinder to be proper "there must be some common activity involving all of the defendants which embraces all the charged offenses"). In this case, by any measure, the facts alleged in the Indictment do not warrant the joinder of Mr. McKay with the codefendants, since the counts arising from the RICO charges against them do not

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arise from the "same acts or transactions" as the counts against the other defendants. The RICO count, Count Six, Seven and Nine and all the counts against Mr. McKay concern acts allegedly committed solely by Mr. McKay. None of the other co-defendants are alleged to have had anything to do with these acts. Conversely, the Indictment does not allege that Mr. McKay had any participation whatsoever in the drug or illegal gun sales or murder or extortion. The RICO count against Mr. McKay charges a different "enterprise" and a different "pattern of racketeering activity" than the "front-end" RICO (Counts One and Two) charged against the codefendants. As the courts have observed, the federal RICO act radically expands the rules governing the types of offenses that may be joined together. See United States v. Riccobene, 709 F.2d 214, 224 (3d Cir. 1983); United States v. Sutherland, 656 F.2d 1181, 1194 (5th Cir. Unit A 1981). As these cases demonstrate, by including a RICO count in an indictment, the government can join offenses that are otherwise unconnected, so long as the offenses are part of an alleged "pattern" or the offenses are related to the same (legal or illegal) "enterprise." If the

government could have included the counts against Mr. McKay in the RICO conspiracy charged in Count Two, it undoubtedly would have done so. It could not and did not. Indeed, the government's stacking of two separate and distinct

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RICO offenses in this Indictment is an admission that the RICO charges do not arise from the same acts or transactions and, hence, that joinder of these defendants is improper. Cf. United States v. Castellano, 610 F.Supp. 1359, 1396-97, 1407-08 (S.D.N.Y. 1985) (defendant not named in RICO or RICO conspiracy count could be joined only if charge against defendant arose out of RICO offense). It is no answer to this analysis merely to observe that several defendants are common to both RICO charges. Unquestionably, if other defendants were tried by themselves, both RICO charges could be included in the same indictment under Rule 8(a)'s "same or similar cha racter" test. It is equally unquestionable that Rule 8(b) allows more than one defendant to be joined in each of the RICO counts, as well as in the substantive counts to which the RICO counts relate. It does not follow, however, that the two RICO counts are therefore properly joined. Such reasoning was refuted some time ago by the District of Columbia Circuit: When similar but unrelated offenses are jointly charged to a single defendant, some prejudice almost necessarily results, and the same is true when several defendants are jointly charged with a single offense or related offenses. Rule 8(a) permits the first sort of prejudice and Rule 8(b) the second. But the Rules do not permit cumulation of prejudice by charging several defendants with similar but unrelated offenses. Cupo v. United States, 359 F.2d 990, 993 (D.C. Cir. 1966) emphasis added; see United States v. Hatcher, 680 F.2d 438, 441 (6th Cir. 1982) (common defendant is not sufficient grounds for joinder of otherwise unrelated counts); see also

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Kotteakos v. United States, 328 U.S. 750 (1946) (defendants have a right "not to be tried en masse for the conglomeration of distinct and separate offenses" even though one defendant was a common participant in each offense). This Indictment joins Mr. McKay with defendants who are not alleged to have participated with him in any joint acts or transactions. Under such

circumstance, Rule 8(b) makes severance mandatory; a denial of severance is reversible error. See United States v. Bibby, 725 F.2d 1116 (6th Cir. 1985); United States v. Hatcher, 680 F.2d 438 (6th Cir. 1982). Accordingly, we respectfully request that Mr. McKay's trial be severed from the trial of all the defendants not named in Counts 75, 77, 79, 81, 91, 93, 95, 97, and 99. B. Prejudicial Joinder Of Counts And Defendants2 At least since the early 1980s, the government has demonstrated a penchant for bringing huge, complex prosecutions involving numerous defendants and drawing together numerous, and often disparate, alleged crimes -- the so-called "megatrial." E.g., United States v. Badalamenti, 626 F.Supp. 659 (S.D.N.Y. 1986) (17 month trial involving 20 defendants). An increasing number of trial judges,

2 Section 13-3.1 (severance should be granted whenever it is "deemed to promote a fair determination of a defendant's guilt or innocence of each offense"). Rule 14 of the Federal Rules of Criminal Procedure authorizes a district court to "order an election or separate trials of counts, grant the severance of a defendant or provide whatever relief justice requires" where a defendant may be prejudiced by a joint trial. Like the other Rules of Criminal Procedure, Rule 14 is to "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." Fed. R. Crim. P. 2; see also American Bar Association Standards for Criminal Justice, Joinder and Severance. -10-

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expressing displeasure with this approach, have granted severance motions so that these megatrials can be divided into more manageable parts. See United States v. Andrews, 754 F.Supp. 1161 (N.D. Ill. 1990) (dividing 178-count, 38-defendant indictment into five trials); United States v. Shea, 750 F.Supp. 46 (D. Mass. 1990) (dividing 57-count, 23-defendant indictment into two trials); United States v. Gambino, 729 F.Supp. 954 (S.D.N.Y. 1990) (dividing 15-defendant indictment into two trials); United States v. Vastola, 670 F.Supp. 1244 (D.N.J. 1987) (dividing 114-count, 21-defendant indictment into two trials); United States v. Gallo, 668 F.Supp. 736 (E.D.N.Y. 1987) (dividing 22-count, 16-defendant indictment into seven trials); see also United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989) (establishing "benchmarks" of four months and 10 defendants beyond which the government will have to justify joinder); United States v. Mancuso, 130 F.R.D. 128 (D. Nev. 1990) (referring severance motion to magistrate with directions to determine manageable units for trial). The megatrial phenomenon has drawn sharp criticism from the commentators as well. See American Bar Association Report, Jury

Comprehension in Complex Cases (December 1989); Federal Bar Council Committee On Second Circuit Courts, A Proposal Concerning Problems Created by Extremely Long Criminal Trials (1989); G. Lefcourt & E. Horowitz, Megatrials Mean Megaproblems, Criminal Justice Magazine p. 21 (Fall 1988); J. Goldberg,

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RICO Megatrials: The More The Messier, White Collar Crime Reporter p. 1 (September 1991); S. Shmukler & J. Shmukler, Megatrial Madness, Complex Crimes Journal p. 141 (1991); G. Cotsirilos & M. Kennelly, Splitting Megatrials Into Manageable Pieces, Criminal Justice Magazine p. 19 (Summer 1991). The courts and commentators alike have recognized the debilitating effects such lengthy and complex cases can have on juries, see A.B.A. Report, Jury Comprehension in Complex Cases, supra, at 31-33 (observing juror hostility and boredom in even relatively short "megatrials"), on judges, see United States v. Gallo, 754 F.Supp. at 1174 (observing that lengthy trials tend to compromise a "judge's ability to rule objectively and dispassionately"), and, especially, on defendants, see United States v. Andrews, 754 F.Supp. at 1176 (finding it unlikely that a jury can give a defendant "the individual justice the law demands" in such cases). The government has estimated that a joint trial of all defendants on all counts of the Indictment will take approximately four months. Experience has shown that the government's time estimates in such ases are often conservative, c sometimes much too conservative. For example, in the Badalamenti case cited above, the government had originally estimated that the trial would take four to six months; it took seventeen. The instant case involves hours upon hours of

electronic surveillance tapes, and the Indictment was the culmination of years of

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investigation. We respectfully submit that a joint trial of all defendants could take much longer than the government's estimate. A defendant trapped in a trial such as this can be prejudiced in many ways. Perhaps the most obvious is the cost, in both time and money, to the defendant during such protracted proceedings. A defendant and counsel may be required to sit by for lengthy periods while evidence relating solely to the co-defendants is introduced. See United States v. Andrews, 754 F.Supp. at 1175. The more serious prejudice, however, is the potential that evidence admitted solely against a codefendant could be misused by the jury. This often occurs in either of two ways: First, massive and complex evidence might confuse the jury, resulting in the jury's inability to give each defendant the requisite individualized consideration. See United States v. Andrews, 754 F.Supp. at 1176 (citing United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)). Second, a great disparity in the weight of the evidence against one defendant can result in prejudicial "spillover" to another defendant. See United States v. Andrews, 754 F.Supp. at 1177-78 (citing United States v. Garner, 837 F.2d 1404, 1413 (7th Cir. 1987)).3

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Other problems presented by such mass trials include the potential that the defendants will present antagonistic defenses or that an admission by one defendant will inculpate another defendant. See United States v. Andrews, 754 F. Supp. at 1175-76, 1179 (citing United States v. Garner, 837 F.2d at 1413 and United States v. Oglesby, 764 F.2d at 1276). In addition, a joint trial might deprive a defendant of the opportunity to introduce the exculpatory testimony of a co-defendant who declines to take the witness stand in his own defense. See United States v. Causey, 834 F.2d 1277, 1277 (6th Cir. 1987). -13-

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If tried jointly with the other defendants, Mr. McKay stands to suffer precisely these types of prejudice. Mr. McKay will be trapped in a lengthy trial, little of which has anything to do with him. Since the charges against Mr. McKay relate solely to certain alleged acts, his separate trial would be brief. In a joint trial, however, Mr. McKay and his counsel would be forced to sit by idly for months before any evidence concerning Mr. McKay was introduced. Because the charges are complex and the evidence will be confusing, this case presents the danger that the jury will be unable to sort the evidence in a manner to give Mr. McKay the individualized consideration and due process to which he is entitled. Moreover, because the amount of evidence against Mr. McKay is minuscule when compared to the amount of evidence against many of the co-defendants, Mr. McKay will suffer from the prejudicial spillover of this evidence. Additionally, Mr. McKay is held in CCA in Florence, Arizona pending the trial in this matter. This trial has delayed several months through no fault of Mr. McKay. He could spend more time in CCA than if he were found guilty and sentenced per the sentencing guidelines. Mr. McKay expressly invokes his right to a speedy trial. An April 25, 2006 trial date extends beyond the time within which Mr. McKay must be tried. Mr. McKay's release having just been denied yet again by this Court, a separate pleading addressing speedy trial rights will be filed.

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To ensure that Mr. McKay is given the fair trial that is his due under the Sixth Amendment, we respectfully request that this Court exercise its discretion in favor of severing Mr. McKay's trial from the trial of his co -defendants and expediting that trial. In the alternative, Defendant asks for his immediate release from detention. III. CONCLUSION Based on the foregoing, the Defendant McKay respectfully submits that he has been misjoined in a single indictment with those co-defendants that are not named in Counts 6, 7, and 9 of the Indictment. Mr. McKay further submits that his joinder with the co-defendants will prejudice him in the presentation of his defense. Accordingly, Mr. McKay respectfully requests that this Honorable Court issue an order severing his trial from the trial of all co-defendants. RESPECTFULLY SUBMITTED this 12th day of December, 2005. _/S/___Barbara L. Hull_____________ Barbara L. Hull, Attorney for Mr. McKay

Original filed electronically this date.

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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]

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