Free Motion for Release from Custody - 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 MOTION FOR RELEASE (Assigned to The Honorable David G. Campbell)

EXPEDITED RULING REQUESTED

Defendant, Robert McKay, through undersigned counsel hereby moves that this Court Order that Mr. Robert McKay be released from detention. For purposes of this motion, Defendant incorporates herein his previous pleading, memoranda and exhibits presented in support of his release. By way of reference, Defendant also incorporates herein his Motion to Dismiss for violation of Massiah, its exhibits, and the Government's Response and its exhibits, and Defendant's Reply. Mr. McKay's previous own-recognizance release was revoked nearly one year ago based upon allegations lodged against him by ATF agents regarding an alleged conversation between one agent and Mr. McKay on August 30, 2005. That conversation is the subject of Counts 8 and 9 of the indictment, and the subject of a pending Motion to Dismiss. Mr. McKay asks the Court to consider the contents,

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factual background and legal arguments relating to that Motion to Dismiss when considering this Motion for Release. Mr. McKay also asks the Court to recall that he had previously requested release, for which this Court denied the defense an opportunity to either call or cross examine Agent Dobyns, the agent who has lodged the allegations regarding the subject conversation. This Court denied release at that time. However, the pending Motion to Dismiss sheds much more light upon the subject conversation, and hence the lack of substance to the agent's allegation. Defendant McKay has requested an evidentiary hearing on the motion to dismiss. Mr. McKay also reasserts the entirety of his original motion for release in support of this motion for release. Mr. McKay has already suffered the death of his father while in custody on Wednesday, February 16, 2005. Defendant asked that he be given temporary release in order to attend the wake and funeral tentatively scheduled for Sunday, February 20, 2005 and Monday, February 21, 2005, respectively. Mr. McKay's request was denied, despite not only the Government's lack of formal position, but the Government's assertion that, through Mr. Michael Kemp, there existed no concern that Mr. McKay would return to custody from the funeral. This devastating loss threatens to be repeated. Mr. McKay's mother, Jacqueline McKay, 78 years old, who was undergoing radiation and chemotherapy for cancer on the day of her husband's funeral, has ju st received notice that the cancer has returned, this time even more aggressively. She has received a terminal prognosis from her oncologist. Mrs. McKay's oncologist, Dr. Elaine Wade, has opined a terminal prognosis for Mrs. McKay with a life expectancy of only a few months.

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If this Court grants release to Mr. McKay, he wishes to travel to Illinois to reside with his mother at 15320 South Millard in Midlothian, Illinois 60445, (708)597-1530. He will return for all required court appearances. The same individuals who previously offered to post any bond this Court may deem appropriate remain to extend that same offer should this Court so require. Defendant also asks that this Court consider the Government's eleventh hour disclosure of wiretap evidence that will most likely result in yet another continuance of trial. Mr. McKay is the only individual in this case not charged in the Garcia murder who remains in custody. He has already served nearly one year for the crimes alleged. In one alternative, Mr. McKay first suggests that this Court grant him release on the condition that he periodically report to a local law enforcement agency in Illinois near his mother's residence to assure the Court that he is remaining in contact and poses no flight risk. In a final alternative, Mr. McKay requests temporary release for the same purpose during the pendency of his mother's illness. 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. RESPECTFULLY SUBMITTED this 22nd day of August, 2005.

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Barbara L. Hull, Attorney for Mr. McKay Original electronically filed this date.

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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 Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 ___/S/_________________________

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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 ORDER

Upon Motion of the Defendant and good cause appearing therefore, IT IS HEREBY ORDERED that Mr. McKay be released under the terms and condition set forth by the Court on the record effective immediately. While released, Mr. McKay is not to possess any alcohol, any weapons of any kind, any medication or drugs without a valid prescription. DATED this day of , 2005. _______________________________ The Honorable David G. Campbell United States District Judge

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