Free Reply to Response - 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
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'S REPLY REGARDING MR. MCKAY'S REQUEST FOR RELEASE (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits the following reply reference his motion for release. The Government has taken this venue as an opportunity to soapbox on other issues, including disparaging co-counsel. Defendant is confident this Court will distinguish those remarks from the issues at hand. Counsel will also point out that, contrary to the allegations in Mr. Duax's response, on March 11, 2005, undersigned attached as Exhibit One to Defendant's Detention Hearing Exhibits the telephone log evidencing the call from Agent Dobyns to Mr. McKay on August 31, 2004. The Government points to its allegation that Mr. McKay knew Dobyns was an ATF agent, when the Small Affidavit expressly notes that Mr. McKay allegedly called Agent Dobyns a "snitch," not an agent. One cannot threaten a federal agent

-1-

Case 2:03-cr-01167-DGC

Document 801

Filed 09/01/2005

Page 1 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

if one doesn't know it's a federal agent. Further, if Mr. McKay is the violent person alleged, why did he stop at this purported threat? It's clear from the Small Affidavit that Mr. McKay had no idea who Agent Kozlowski was. Why didn't Mr. McKay, either on his own or by eliciting the assistance of Kozlowski who was also dressed in biker attire, simply assault Dobyns then and there? Finally, Mr. McKay would be anxious to prove to this Court not only his integrity but his reliability when avowing to this Court that he will abide by whatever conditions this Court deems appropriate so that he might not suffer the loss of his mother while in custody on charges whose legitimacy wanes with each pleading. Mr. McKay has already served one year in custody and suffered the loss of his father while detained, punishment greater than than he would receive upon conviction in this case. The defense is asking that this Court consider all the circumstances involved and note that Agent Dobyns continues to remain in Tucson, continues to investigate motorcycle clubs, appears at motorcycle rides, and evidences no concern whatever for his safety. The Government should not be allowed to argue this issue again. On August 17, 2005, undersigned emailed Mr. Duax requesting his position on Mr. McKay's request for release, particu larly in light of Mrs. McKay's illness. Mr. Duax responded on August 17. 2005 with the following: "I am willing, because I understand about a mother dying from cancer, to allow a temporary release, a week or so, for him to visit and return. I don't needa letter from the oncologist, I'll take your word. I am not willing to stipulate to his release pending trial. If you want to do a stipulation for a temporary release, let me know, and we can get it done quickly. If you intend to file a motion to permanently modify his release conditions, I will oppose it for the reasons set forth above, and others. Let me know."
-2-

Case 2:03-cr-01167-DGC

Document 801

Filed 09/01/2005

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

The presumption here is for release. What little the Government proffered previously is no longer sufficient to maintain detention under all the circumstances. The Court will note that Mr. McKay requested as one alternative that Mr. McKay be released during the pendency of his mother's illness. While it is the defense position that one week is not only an unreasonably short amount of time under the circumstances, Mr. McKay would honor this Court's conditions for release for whatever amount of time it deems reasonable. RESPECTFULLY SUBMITTED this 1st day of September, 2005.
____/S/__________________________________

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]

-3-

Case 2:03-cr-01167-DGC

Document 801

Filed 09/01/2005

Page 3 of 3