Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Timothy T. Duax Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States, through counsel undersigned, hereby responds to defendant's Motion for Protective Order. The defendant has requested the United States cease all communication with defendant McKay. The government's position is that neither the United States Attorney's Office, nor the Bureau of Alcohol Tobacco and Firearms (ATF) has directly or indirectly sought contact with the defendant, or questioned him, while he has been incarcerated at CCA. Consequently, the United States is able to comply with the request without difficulty. The same cannot be said for CCA, as it is responsible for confining defendant McKay, and running a prison. The United States believes the law allows CCA, in the interests of inmate safety, to question inmates regarding gang affiliation, a fact relevant to inmate safety, without violating their constitutional rights. Bell v. Wolfish, 441 U.S. 520, 546-547, (1979). In addition, the law also suggests that prison officers can investigate and ask questions regarding incidents that occur within the facility. Certainly, inquiry regarding uncharged matters would not run afoul of Massiah, as the Sixth Amendment is case-specific. United States v. Danielson, 325 F.3d 1054, United States of America, CR 03-1167-16-PHX-DGC Plaintiff, v. Robert S. McKay (16) Defendant. RESPONSE TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER

Case 2:03-cr-01167-DGC

Document 823

Filed 10/07/2005

Page 1 of 3

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1066 (9 th Cir. 2003). Accordingly, the actions of CCA in debriefing inmates and investigating prison incidents are legitimate, and not violative of defendant's constitutional rights. It is expected, after speaking counsel for CCA, Daniel Struck, that CCA will file its own brief in this matter. The defendant also requested the United States disclose records, ostensibly in the possession of CCA, of communications between CCA employees and defendants McKay, Murphy and Augustiniak. This request should be denied. The defendant has not cited any legal authority supporting the request. Additionally, the government is not in possession of any such records, and does not know if any such records exist. To conclude, there is no violation of the defendant's constitutional rights by the United States as there has been no effort to communicate with defendant McKay either directly or indirectly. There does not appear to be any violation of defendant's constitutional rights by CCA either, as debriefing an inmate regarding gang membership or affiliation is allowed as necessary for prison security, and as part of the deference shown to prisons by the courts. Inquiries regarding matters unrelated to the present charges do not implicate Massiah concerns, and are likewise not violative of the defendant's constitutional rights. Although the defendant would like this Court to create a linkage between the defendant's right to refuse to communicate with prison officials and defendant's current release conditions, there is no such link. They are two separate legal questions, dependent on different facts and different legal standards, and should be decided separately. Based upon the foregoing, the United States respectfully requests this Court deny the defendant's motion in its entirety. Respectfully submitted this 7th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Timothy T. Duax TIMOTHY T. DUAX Assistant U.S. Attorney 2 Case 2:03-cr-01167-DGC Document 823 Filed 10/07/2005 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Barbara L. Hull, Esq. Attorney for Defendant

CERTIFICATE OF SERVICE

: I hereby certify that on October 7, 2005, I electronically transmitted the attached document
to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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