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 Number 012694 Two R enaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, No. CR-03-1167-PHX-DGC Plaintiff, v. Robert McKay, Defendant. The United States of America, by and through counsel undersigned, hereby responds to defendant Robert McKay's Motion for Release and respectfully requests that the motion be denied and that the defendant remain detained. The defendant has been determined, by this Court, to be a danger to the community. The circumstance cited by the defendant as justifying his release, that his mother has taken ill, does not ameliorate such risk and does not justify the modification of defendant's current release conditions to allow for his release pending trial. This Response is more fully supported by the attached Memorandum of Points and Authorities. Respectfully submitted 30th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona GOVERNMENT'S RESPONSE TO MOTION FOR RELEASE

/s/ Timothy T. Duax TIMOTHY T. DUAX Assistant U.S. Attorney

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1 2 I. 3 4 FACTS

MEMO RANDUM OF POINTS AND AUTHORITIES

Defendant McKay is charged in the Second Superseding Indictment with the following charges: Count 6, Violent Crime in Aid of Racketeering, Count 8, Violent Crime in Aid of 5 Racketeering, and Count 9, Threatening a Federal Officer. 6 On June 21, 2000, Robert McKay engaged in an assault upon William Potter as outlined 7 in Count 6 of the Second Superseding Indictment. This assault was done in order to terminate 8 Mr. Potter's relationship with the Hells Angels Motorcycle Club ("HAM C"). Defendant McKay 9 used a flash light to beat Mr. Potter repeatedly, and Mr. Potter suffered significant physical 10 injuries. 11 On August 31, 2004, Defendant McKay had contact with an agent working for the Bureau 12 of Alcohol, Tobacco, Firearms and Explosives ("ATF") at a bar in Tucson, Arizona. Defendant 13 McKay told the ATF agent that he knew who the ATF agent was and made various threats of 14 physical harm against the ATF agent. Defendant McKay believed that this agent was an 15 undercover agent who worked this investigation and threatened to assault the agent for his 16 involvement in the investigation. On September 1, 2004, the defendant was charged by 17 complaint for threatening the ATF agent, and defendant received a hearing regarding the issue 18 of detention. 19 In Judge Velasco's Order of Detention dated September 10, 2004, he cited there was 20 probable cause to believe that the defendant has committed an offense, that the defendant was 21 a serious flight risk, and that the defendant was a serious risk to the safety of another person or 22 the community. Magistrate Judge Virginia Mathis then affirmed Magistrate Judge Velasco's 23 findings on October 6, 2004. 24 On January 12, 2005, defendant filed a motion to review the magistrate's detention order, 25 and on March 7, 2005, a hearing was held to resolve that motion. On M arch 22, 2005, this Court 26 signed its Order denying the defendant's motion and affirming Magistrate Judge Velasco's Order 27 28 2

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of Detention. In its Order, this Court found that the defendant presented a danger to the community that could not be resolved short of detention. II. LEGAL ANALYSIS

A. The Change in Defendant's Circumstances Does Not Affect the Previous Determination of This Court Regarding Defendant's Danger to the Community. The United States does not believe that the defendant's mother's illness changes the facts as determined by this Court in its March 22, 2005, order. The reason the defendant was detained was that he posed a danger to the community, his mother's illness is wholly irrelevant to that determination. Consequently, if the mother's illness is the basis for defendant's motion, it must be denied. B. There Are No Grounds to Reconsider This Court's March 22, 2005, Order. If the defendant is actually seeking to have the court reconsider its March 22, 2005, order, the United States submits there are no grounds to do so. However, should this Court feel it appropriate to reconsider the defendant's January 12, 2005, motion, the United States reiterates the following grounds for the continued detention of the defendant: Pursuant to Title 18, United States Code, Section 3142(e), a judicial officer shall order the detention of a person before trial if the officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community. Section 3242(e) contains a presumption that no condition or combination of conditions will reasonable assure the appearance of the defendant and the safety of the community based on the nature of his charge if the case involves a crime of violence. In making a determination regarding the defendant's release conditions, this Court shall take into account the available information concerning whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community. Title 18, United States Code, Section 3142(g) outlines the factors for the Court to consider: (1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; 3

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(2) the weight of the evidence against the person; (3) the history and characteristics of the person, including (A) length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history; and (B) whether, at the time of the current offense, the person was on release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. Defendant McKay is charged with two counts of committing a violent crime in furtherance of an enterprise, namely, the HAM C, in Counts 6 and 8. Count 6 involved the actual assault of another individual resulting in substantial physical injury, and Count 8 involves the threat of assaulting another individual on behalf of the HAMC. The victim in Counts 8 and 9 is an ATF agent. Count 6 clearly raises the presumption that no condition or combination of conditions will assure the safety of the community since that is clearly a crime of violence. Counts 8 and 9 involve threatening a federal law enforcement agent. It is difficult to imagine a situation which reflects an individual's danger to the community more than when that individual directly threatens a law enforcement officer. Further, the defendant was awaiting trial on the first Indictment when he threatened the agent. The aforementioned facts and law are in accord with this Court's March 22, 2005, Order, and said Order should be affirmed. C. The Defendants' Attempts to Malign the Credibility of the Government Are Without Merit 1. The Government's position regarding the events of August 30, and 31, 2004, has not changed. The defendant suggests the government has changed its position regarding the August 30, 31, 2004, incident between Agent Dobyns and defendant. Nothing could be further from the 4

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truth. The Government steadfastly maintains its position that neither Agent Dobyns nor Agent Kozlowski were investigating the case at bar on August 31, 2005. The Government has provided agency reports to inform the court of the cases the agents were working at that time. Agent Dobyns did not expect to see the defendant at the Club Congress on the night in question. A reasonable conclusion as Agent Dobyns had visited defendant on a number of occasions, and the defendant had never mentioned the Club Congress, and had never gone there with Agent Dobyns. This despite the fact that the Club Congress was just a few blocks away from the defendant's residence. Upon arriving at the Club Congress, the defendant threatened Agent Dobyns verbally, specifically, defendant McKay told the ATF agent that "We've been checking on you" and that "You're gonna spend the rest of your life on the run from us. You're a marked man." defendant physically confronted the ATF agent and called him a "punk snitch." McKay also told the agent "watch yourself. This is dangerous shit." Finally, McKay turned to the agent as he was leaving the location and told the agent "You're going to get hurt." At the time of this confrontation, defendant M cKay was wearing his HAM C club vest and the HAM C colors. A common sense analysis of the context in which these threats were made supports the veracity of the reporting agents. McKay and his brothers, his fellow Hells Angels, had been duped by Agent Dobyns, and as a direct result, some of those same brothers were incarcerated. McKay and other Hells Angels had already been indicted on federal charges. All of the aforementioned facts provided motive for the defendant to act as he did. 2. The defendant's claims regarding the events of August 30, 31, 2004, are everchanging. In contrast to the consistent position taken by the United States, the defendant's original account alleges that the agents went to the Club Congress, a place where they had never seen or accompanied McKay, for the purpose of tricking him into violating his release conditions by contacting other Hells Angels. Such an assertion is far-fetched and a complete fabrication. If the agents were so dedicated to acquiring evidence that McKay had violated his release conditions, why didn't they go to defendant's residence, a place they knew he lived, and a place frequented 5 Case 2:03-cr-01167-DGC Document 798 Filed 08/31/2005 Page 5 of 10

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by other members of the Hells Angels. (All but forgotten in the recent spate of pleadings from the defendant [filed by his new attorney] is the allegation [made by defendant's previous attorney] that Agent Dobyns called the defendant on August 30, 2004, to provoke a violation of his release conditions. The defendant was to provide phone records to substantiate the claim. Predictably, no proof has been presented. ) The defendant now alleges there is a related Pima County, Arizona, case, and it is within the context of that case that the confrontation between defendant and Agent Dobyns occurred. The purpose of the investigation referenced by the defense appears to be to establish a link between the Devil's Disciples and the Hells Angels. It is unclear whether the defendant is now claiming this was the motive behind Agent Dobyns' arrival at Club Congress, or whether the previous allegation, that Agent Dobyns' entry into the Club Congress was to procure evidence of defendant's violation of his pretrial release, is still defendant's position. Apparently, we will have to wait for the availability of an August 27, 2004, Tucson newspaper article, ostensibly unavailable at this time, to find out. 3. The government's decision not to call Agent Dobyns at the detention hearing was no obfuscatory. The defendant cites the government's unwillingness to call Agent Dobyns as evidence of its insinuation that the government is "hiding something". As this Court may already suspect, part of the government's motivation was to avoid the likely attempt by the defendant to gain information regarding the government's confidential informants through cross examination of Agent Dobyns. As the government could avoid such attempts by proceeding by way of proffer, it did so. As this Court may recall, the defense proceeded by way of proffer as well. In addition, the unscrupulous accusations (such as the accusation that Agent Dobyns called the defendant on August 30, 2004) made by this defendant also played a role in the government's decisions. Another good example of the type of accusation to which the government refers is the accusation by the defendant that Agent Dobyns did not move away from Tucson. This accusation is based upon an alleged sighting of Agent Dobyns (by persons unknown) at a football game in the fall of 2004, and at a motorcycle run in February of 2005. Agent Dobyns has, in fact, moved and 6 Case 2:03-cr-01167-DGC Document 798 Filed 08/31/2005 Page 6 of 10

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undersigned counsel can relate to the court that all of his telephone calls and faxes to Agent Dobyns are made to an out-of-state area code. That the government is loath to expose Agent Dobyns to such inane cross examination as would result from the exploration of said accusations is not hard to understand. 4. The recent wiretap disclosures discussed at the August 25, 2005, status conference were not closely related to the present case, and were previously disclosed to two of the defense attorneys in this case.. The defendants in this case have engaged in a concerted effort to undermine the credibility of the government before this Court. At no time was this more evident than at the above-referenced status conference. The primary vehicle for the defendants' efforts was the recent disclosure by the government of wiretap intercepts. The defendant refers to said disclosure as being at the "eleventh hour", an interesting characterization of a disclosure made six months before trial. Characterizations aside, the facts regarding the wire intercepts and their underlying cases cast doubt as to the sincerity of the defendants' self-professed outrage. The wire intercepts referred to by Agent Slatalla in his curriculum vitae, that were the subject of defendant Johnston's motion to produce, filed in July of 2005, arose from two separate investigations that resulted in two separate criminal indictments. United States v. Robert Pancrazi et al. CR04-0028-PHX-SRB, and United States v. Greg Surdukan et al. CR01-0474PHX-SRB. In the Pancrazi case, attorney Phillip Seplow (who represents defendant Robert Reinstra in the present case) represented defendant Dennis Craig. During the Pancrazi case, all of the wiretap intercepts were m ade available to the defendants, including Mr. Seplow. In the Surdukan case, attorney Seplow, and attorney Patricia Gitre (who represents Kevin Augustiniak in the present case) represented defendants. Mr. Seplow represented defendant Blake Benson, and Ms. Gitre represented defendant Chris Balcum. An email from Ms. Gitre, dated September 4, 2001, revealed that she reviewed discovery regarding the wiretap intercepts in the Surdukan case on or before September of 2001. Mr. Seplow had access to the same wiretap evidence in 2001. Although M s. Gitre later withdrew from her representation of Mr. 7 Case 2:03-cr-01167-DGC Document 798 Filed 08/31/2005 Page 7 of 10

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Balcum, Mr. Seplow continued to represent Mr. Benson throughout the pendency of the case. It is not known to what extent attorneys Seplow and Gitre have shared the discovery in the Surdukan and Pancrazi cases with their fellow counsel in this case, however, it bears noting that counsel for defendant Johnston, Brian Russo, referred to 4,000 pages of discovery related to the wiretap intercepts. As the court may recall, undersigned counsel questioned the origin of that figure, and noted that the government had not provided any such figure to Mr. Russo. Curiously enough, after locating the documents associated with the Pancrazi case (approximately 1,300 pages) and the Surdukan case (approximately 2,700 pages), it appears Mr. Russo had information regarding the wire intercepts over and above the references in Agent Slatalla's CV. One would expect, if the two cases in which the wire intercepts were done were really just part of "one big investigation" as asserted by the defense, that attorneys Seplow and Gitre are possessed of conflicts of interest, having already represented other individuals in this "one big investigation". And yet, neither attorney has brought such conflicts to the attention of this Court. In their defense, the government does not believe there was "one big investigation", in fact, as to the Pancrazi case, not a single intercepted conversation involved a defendant in the present case, not one. And yet the defense would have the court believe the cases were so interrelated as to trigger a duty to inquire under Rule 16 of the Federal Rules of Criminal Procedure. Furthermore, in the Surdukan case, out of over 3,000 intercepted calls, only nine involved defendants indicted in this case, Donald Smith and Theodore Toth. And of the nine calls, none involved any criminal activity as alleged in this case. As the government did not intend to use any of the wire intercepts from the Surdukan and Pancrazi cases, and none of the intercepts contained exculpatory information or information material to the defense, the government does not believe it had a duty to disclose such information pursuant to Rule 16. The United States is confident that the aforementioned tactics of the defendant, and other defendants in this case, have not prejudiced this Court against the government. Such tactics have done little to change the basic facts at issue in this defendant's motion. Defendant is a danger to 8 Case 2:03-cr-01167-DGC Document 798 Filed 08/31/2005 Page 8 of 10

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the community, sick mother or no sick mother, and sidling unfounded accusations against insinuations of prevarication does not change that judicially determined fact. Wherefore, based upon the foregoing the United States respectfully requests this Court deny the defendant's motion in its entirety. Respectfully submitted 30th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

/s/ Timothy T. Duax TIMOTHY T. DUAX Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

:

I hereby certify that on August 31, 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:

[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

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