Free Reply to Response - 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'S REPLY REGARDING MOTION TO DISMISS FOR MASSIAH VIOLATION/SUPPLEMENT TO MOTION TO DISMISS; EVIDENTIARY HEARING REQUESTED (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits this Reply regarding his Motion to Dismiss for Massiah violations. The additional information provided is offered to supplement that Motion. First, the Defendant points out that the Government has cited no authority whatsoever for its Response. Apparently, the Government's new position is that, even if Agent Dobyns was questioning Mr. McKay post-indictment, "there was no discussion regarding the offenses for which defendant had already been indicted, hence no violation of defendant's Sixth Amendment rights." (Government's Reply, page 8.) This obviously assumes the veracity of the Small Affidavit, i.e.,

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the veracity of the hearsay report to Agent Small by Agent Dobyns.1

The

Government's position begs the obvious question of how Agent Dobyns' statement "while I was under on you guys" concerned a topic not related to the subject case, charges or investigation. In the March 7, 2005 hearing held on the request for release by Mr. McKay, Mr. Duax stated to this Court, referring to the investigation Agents Dobyns and Koslowski were conducting the night of the subject conversation on August 30, 2004: "It was an investigation that Agent Dobyns had been there from the inception of; it had nothing to do with Hell's Angel's; it had nothing to do with anything peripheral to Hell's Angels; it was totally independent." (Transcript of March 7, 2005 hearing, page 28.) In truth, the defense has discovered a case in Pima County that appears to be the result of that "totally independent" investigation. The defense has discovered an ongoing investigation in Tucson, Arizona, where Dobyns' purported conversation took place. Attempts to retrieve the related law enforcement reports have met with a response that the investigation is ongoing and the reports are therefore unavailable. Upon receipt, the defense will provide this Court with (1) an August 27, 2004 news article published in a Tucson newspaper reference this investigation; (2) a partial transcript of the related grand jury proceedings held on August 19, 2004; and (3) the resultant Indictment dated September 22, 2004 out of Pima County in Tucson, Arizona. The Court should note in the grand jury transcript that the Hell's Angels are e xpressly referenced in this proceeding. The defense also has learned that in September of 2004,

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Agent Dobyns has yet to file his own statement. When considered in conjunction with the Government's success at preventing Agent Dobyns from being called to the stand, the agenda is clearly that of avoiding giving a formal statement that would prevent the Government from again changing its position. -2-

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defendant Tina Louise Butz sought a protective order from the court in that case. This order was sought as a result of ATF agents contacting her directly postindictment without her attorney present. In those contacts, it was alleged that those agents were attempting to link the Hells Angels to the Devils Disciples, the motorcycle club named in the Tucson indictment. Also in September of 2004, those defendants sought the warrants involved in that case. One member's computer was seized and taken to Detroit, Michigan where the federal investigation was based. The prosecutor, Laura Reckart of the Arizona Attorney General's Office, informed the Tucson court that the federal investigation was ongoing, that it was based out of Detroit Michigan, and the warrants were therefore not going to be disclosed. Not coincidentally, ATF Agent Kozlowski, the agent who was with Agent Dobyns at Club Congress August 30, 2004, is based out of Detroit, Michigan. Also relevant to the Government's claim that the subject conversation, and the agents' motives on that date, were "wholly unrelated" to the Hells Angels, the Court should note that the disclosure in this case reveals several occasions, including a wired conversation between Agent Dobyns and Robert McKay on May 5, 2003, where both Agents Dobyns and on of the ATF informants tried getting individuals, including Mr. McKay, to make statements linking the Hells Angels to the Devil's Disciples motorcycle club. Defendant finally turns the Court's attention to the Government's newly disclosed wiretap evidence which includes conversations taped for approximately eight months subsequent to Mr. McKay's initial release in December of 20 03. The Government has also argued that the letter from CCA's legal counsel is support for its contention that the personnel at CCA are doing nothing to assist the ATF or the Government in its quest for information, nor are those contacts
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violative of Massiah. On August 9, 2005, Mr. McKay was returning indoors with another inmate, Mr. Augustiniak, when Officer Brody of CCA approached the two gentlemen with what appeared to be a printout of a photograph of Defendant Eischeid, who is currently on absconder status in this case, from the America's Most Wanted website. America's Most Wanted had just recently run the Hell's Angels program and included Mr. Eischeid's photograph indicating he was being sought in this case. Officer Brody approached these two gentlemen and asked if they knew Paul Eischeid. Neither of these men responded to the inquiry. In response to the Government's assertion that Agent Dobyns felt so threatened by the August 30, 2004 conversation that he had to relocate, the defense has information that Agent Dobyns still resides in Tucson and has not relocated. In fact, he was seen this past football season attending a University of Arizona (Dobyns' alma mater) football game and was seen observing a Tucson motorcycle ride in February of 2005. Regarding the Government's assertion that no wire was worn by Agents Dobyns or Kozlowski, the defense again refers to Agent Dobyns' statements referenced on page six of Defendant's motion. While the Government engages in backpedaling, the defense stands firm in its position that the Government has not been forthcoming in its avowals to this Court as to the character of the August 30, 2004 conversation and Dobyns' and Koslowski's underlying motives. The Government continues to undermine its own avowals, and the defense is continuing to uncover evidence of the disingenuous nature of those avowals. The government is correct in its allegation that the defense is seeking an evidentiary hearing requiring the government to present evidence through Dobyns' testimony as to his purpose and actions on August 30, 2004. The defense has
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never tried to disguise that fact. The Court may recall the defense attempting to call Agent Dobyns to the stand on March 7, 2004. The exhibits referenced herein will be submitted upon receipt. The defense asks that this Court allow supplementation of this memo should the investigation disclose further relevant information during the pendency of pleading. In light of the information provided, the Government's position, in its many forms, just doesn't make sense. Therefore, Mr. McKay asks this Court to inquire into the change of position by the Government from the March 7, 2005 statement that the August 30, 2004 conversation "had nothing to do with Hell's Angel's; it had nothing to do with any peripheral to Hell's Angels; it was totally independent," and that the agents were not expecting to see Mr. McKay at Club Congress, to the Government's new position that the agents "were in the middle of other matters at the time in question." (Gov ernment's Response, page 8.) The defense asks that the Court no longer accept the Government's assertion that the August 30th meeting was happenstance, or that the defense position is "bereft of proof." Calling the Government to task appears appropriate u nder the circumstances. It is not anticipated that excludable delay will occur under 18 U.S.C. §3161(h)(8)(A) as a result of this motion or any resultant Order.

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RESPECTFULLY SUBMITTED this 25th day of August, 2005.

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Barbara L. Hull, Attorney for Mr. McKay Original electronically filed this date. Copy of the foregoing Motion delivered electronically this date to: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, Arizona 85003-0001 Copy of the foregoing forwarded this date to: Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 Copy provided to: Robert McKay Defendant

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