Free Motion for Protective Order - District Court of Arizona - Arizona

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

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 Robert McKay
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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

) ) ) ) ) ) ) ) ) )

Case No.: CR-03-1167-16-PHX-DGC DEFENDANT ROBERT McKAY'S MOTION FOR PROTECTIVE ORDER (Assigned to The Honorable David G. Campbell) (Expedited Ruling Requested)

Defendant, Robert McKay, through undersigned counsel, hereby submits his request that this Court issue a protective order directing that all employees of CCA/CADC and all employees and/or agents of the ATF and all employees and/or agents of the United States Government, directly and indirectly, cease and desist from any and all communication in any form whatever with Mr. Robert McKay. Defendant has previously advised this Court of the nature of prior communications with Mr. McKay by employees of CCA in his Reply regarding the Motion to Dismiss for Massiah violations dated September 1, 2005. The Court will also recollect that undersigned communicated with both CCA's counsel Daniel Struck, with copies to Mr. Duax of the AUSA, regarding this matter and asking that this type of communication cease. The AUSA was copied in part due to counsel's belief that these types of communication have been at least influenced, if not directed, by the ATF and its ongoing investigation in this case.
-1-

Case 2:03-cr-01167-DGC

Document 821

Filed 09/30/2005

Page 1 of 4

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

On Saturday, September 17, 2005, CCA Warden Bruno Stolc spoke at the mandatory CJA training held in Phoenix, Arizona. At that seminar in front of dozens of witnesses, Warden Stolc was asked whether his CCA gang enforcement officers question inmates about their alleged gang affiliations in hopes of securing admissions. Warden Stolc did not hesitate in responding, "Yes." Warden Stolc also stated that his organization, through these gang enforcement officers, maintains complete written records of any and all communications with inmates. On Wednesday September 28, 2005, a CCA gang enforcement officer approached Mr. Robert McKay yet again asking about Hells Angels and asking for names of individuals Mr. McKay might know to be members of Hells Angels. Also, as yet another attempt to influence Mr. McKay's desire to respond to this type of questioning, Mr. McKay has been placed in lockdown with inmates accused of murder, thus depriving him of those limited liberties afforded inmates not so charged. Despite repeated efforts by undersigned counsel to prevent this type of interrogation, intimidation and retaliation, and despite the pending motion to dismiss for Massiah violations, and despite notification to all parties involved that this type of communication is likewise violative of Mr. McKay's constituti onal rights, CCA, and surreptitiously the Government through the ATF, continues in its quest to ignore all these factors. Defendant adds that Mr. McKay obediently followed this Court's Order permitting his temporary release to visit his mother prior to her death. Mr. McKay's continued detention affords CCA an ongoing and continuous opportunity to knowingly violate his rights. Mr. McKay's release from custody pursuant to his pending request for such relief would go a long way to alleviating this type of communication.
-2-

Case 2:03-cr-01167-DGC

Document 821

Filed 09/30/2005

Page 2 of 4

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

WHEREFORE, Mr. McKay asks that this Court issue its Order directing the ATF and CCA/CADC and all Government employees to cease and desist from any and all communication with Mr. McKay but for inquiry as to his name and identification number. Defendant also asks that this Court Order immediate disclosure of all written and other records of such communications with Mr. McKay and other alleged Hells Angels members, including but not limited to Mr. Robert McKay, Mr. Kevin Augustiniak, and Mr. Andrew Murphy. Without this type of Order and the possibility of sanctions for its violation, the Government has demonstrated that it will continue with these tactics. Mr. McKay also asks that this Court consider these communications in review of Mr. McKay's pending Motion to Dismiss for Massiah violations. A copy of this motion is being forwarded to CCA's counsel. *** ***

-3-

Case 2:03-cr-01167-DGC

Document 821

Filed 09/30/2005

Page 3 of 4

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

RESPECTFULLY SUBMITTED this 30th day of September, 2005.
____/S/__Barbara L. Hull_________________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date. Courtesy copy of the foregoing Motion 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] Copy of the foregoing mailed this date to: Daniel Struck, Esq. Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Counsel for CCA/CADC

___/S/ Barbara L. Hull____________________

-4-

Case 2:03-cr-01167-DGC

Document 821

Filed 09/30/2005

Page 4 of 4