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 No. 012694 Two Renaissance Square 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 03-1167-16-PHX-DGC Plaintiff, v. Robert S. McKay (16) Defendant. RESPONSE TO DEFENDANT'S MOTION TO DISMISS PURSUANT TO MASSIAH VIOLATION

The United States, through counsel undersigned, hereby responds to defendant's Motion

15 to Dismiss Pursuant to Massiah Violation. The government's position, as set forth more 16 completely in the attached Memorandum of Points and Authorities, is that government agents 17 neither sought contact with the defendant, nor questioned him with respect to the charges then 18 pending against him. 19 Furthermore, the discussion that did occur between defendant and ATF Agent Dobyns on

20 August 30, 2005, did not pertain to the facts of defendant's pending case. As the Sixth 21 Amendment rights invoked by the defendant's motion are case specific, the threats made by 22 defendant against Agent Dobyns were not used in violation of the Sixth Amendment, and the 23 relief requested by the defendant must be denied. 24 Likewise, representatives of CCA did not speak, or attempt to speak, to the defendant

25 regarding the charges then pending against the defendant. Consequently, there was no violation 26 of defendant's case specific right to counsel, and neither Massiah nor any other case law requires 27 dismissal of the charges against the defendant. 28

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1 2 The Government's position is set forth in the attached Memorandum of Points and Authorities. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this

10th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/Timothy T. Duax TIMOTHY T. DUAX Assistant United States Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Factual Issues 3 A. Agents Dobyns and Kozlowski did not seek contact with defendant, did not seek to elicit 4 statements from defendant, and did not question defendant regarding his pending charges. 5 6 1. Agents Dobyns and Kozlowski were not working the present case on August 30, 2004. On August 30, 2004, Agents Dobyns and Kozlowski of the Bureau of Alcohol Tobacco and

7 Firearms (ATF) were working undercover as part of the Violent Crime Impact Team-Tucson 8 (VCIT), which is part of Project Safe Neighborhoods. As they had done in the days prior to 9 August 30, 2004, and as they would the day after August 30, 2004, Agents Dobyns and 10 Kozlowski attempted to identify individuals that were engaging in criminal conduct involving 11 firearms, investigate the conduct and arrest the individuals responsible. Evidence of their VCIT 12 investigative activities can be best gleaned from the reports of the investigations involved. These 13 reports are attached hereto, and are collectively referenced as Exhibit A. The reports were 14 prepared within a couple of weeks from the dates of the events referenced therein, and well 15 before defendant's motion was prepared. The reports describe the agents' activities from August 16 24, 2004, through August 31, 2004. 17 On August 30, 2004, at approximately 8:00 p.m., Agents Dobyns and Kozlowski, acting in

18 an undercover capacity, purchased a weapon and received marijuana from suspect Robert 19 Hernandez. Agents Dobyns and Kozlowski entered the Club Congress the same night to scout 20 for potential VCIT targets. On August 31, 2004, the same agents purchased another firearm from 21 Hernandez and discussed a future purchase of marijuana. As Mr. Hernandez was a prohibited 22 possessor of firearms, a criminal complaint was filed against Hernandez. 23 Very similar investigative activity was undertaken by Agents Dobyns and Kozlowski on

24 August 24, 25, 26 and 27, 2004, and it is important to note that the targets of those investigations 25 were neither members of outlaw motorcycle gangs, nor associated with the present case. 26 The point of bringing the aforementioned investigative activities of Agents Dobyns and

27 Kozlowski to the attention of this Court is twofold. First, the information presented corroborates 28
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1 the statements made by undersigned counsel to this Court on March 7, 2005, to the effect that 2 Agents Dobyns and Kozlowski were working on a wholly unrelated investigation on August 30, 3 2004, and neither intended nor expected to encounter the defendant on that date. Second, the 4 information presented clearly rebuts the assertions of defendant that Agents Dobyns and 5 Kozlowski were "working this case". The simple truth is that they were not. 6 2. Agents Dobyns and Kozlowski were not wearing "motorcycle club attire" on August 30,

7 2004. 8 There is, in the defendant's motion, a somewhat nebulous accusation to the effect that

9 Agents Dobyns and Kozlowski were dressed in "motorcycle club attire" when they entered the 10 Club Congress. As they were operating in an undercover capacity, Agents Dobyns and 11 Kozlowski were in attire designed to blend in with their surroundings. However, they were not 12 wearing "motorcycle club attire". They wore no helmets, gloves, vests, patches, or other indicia 13 of biker club membership, and significantly, they did not ride motorcycles to the bar. If, as 14 defendant would have this Court believe, Agents Dobyns and Kozlowski were holding 15 themselves out to be bikers by wearing "motorcycle club attire", it seems logical, to add 16 credibility to their characters, the agents would have ridden motorcycles to the club. 17 3. Agents Dobyns and Kozlowski did not approach the defendant after entering the Club

18 Congress. 19 As related to this Court in the government's March 7, 2005, proffer, it was the defendant that

20 approached Agent Dobyns after the latter entered the Club Congress. Upon seeing Agent Dobyns 21 in the Club Congress, defendant approached Agent Dobyns, and in an attempt to threaten and 22 intimidate Agent Dobyns, the defendant deliberately invaded the agent's personal space. It was 23 only after this aggressive act of the defendant, that Agent Dobyns spoke to the defendant. 24 Unsatisfied with his attempt to physically threaten and intimidate, the defendant then made a 25 number of verbal threats which are well known to this Court and were found by a federal grand 26 jury to constitute probable cause to believe defendant committed violations of 18 U.S.C. 27 28
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1 Sections 115(a)(1)(B), 115(b)(1)(4) and 1959(a)(4). Threatening a Federal Law Enforcement 2 Officer and Violent Crime in Aid of Racketeering. 3 4. Agent Dobyns did not ask any questions about defendant's pending case, or any other

4 criminal activity. 5 The defendant did not allege that Agent Dobyns attempted to discuss defendant's pending

6 case, in fact, defendant alleged that Agent Dobyns hoped to incite defendant to violate his terms 7 of release by contacting other Hells Angels. The allegation is false to be sure, but even if true, 8 did not involve an attempt to elicit admissions of criminal behavior. 9 B. Neither Agent Dobyns nor Agent Kozlowski was wearing a wire or other recording 10 device at the Club Congress on August 30 and 31, 2004. 11 Defendant alleges that the above-referenced agents recorded their contact with the defendant

12 on August 30, 31, 2004 at the Club Congress. Defendant has no evidence to substantiate the 13 allegation, and cobbles together a mishmash of misinterpretations to support his theory. The 14 disjunction between point and proof in the defendant's motion is so great as to border on 15 delusion, and examples are easy to find. 16 As a rebuttal to the government's assertion that agents were not at the Club Congress to

17 investigate McKay or the Hells Angels, defendant refers the Court to the following quotation 18 from Agent James Small's affidavit, dated September 1, 2004: "I am currently assisting in the 19 investigation of Robert Spence McKay." 20 As is clear to anyone without a design to deceive, Agent Small's affidavit, and the quotation

21 taken therefrom, refer to the investigation of the threats made by McKay to Agent Dobyns on 22 August 30, and 31, 2004, an investigation that commenced after the threats were made, not 23 before as insinuated by the defendant. It is virtually impossible to read the affidavit and reach 24 any other conclusion. That the affidavit was made in support of the criminal complaint against 25 defendant arising out of the threats forecloses any doubts regarding its implication. The same 26 is true for the quoted language from defense Exhibit Four. 27 28
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Defendant cites the fact that Agent Dobyns had been to McKay's home, which was only

2 two blocks from the Club Congress, as proof Agent Dobyns expected McKay to be there, but 3 fails to tell the court that despite its proximity, Dobyns and McKay had never gone to that club 4 together. In fact, in the two years of undercover investigation, none of the ATF agents 5 investigating the Hells Angels had any contact with the Hells Angels at Club Congress prior to 6 August 30, 2004. Furthermore, the Club Congress was never identified or mentioned as a Hells 7 Angels' hangout or the hangout of any particular Hells Angel. Accordingly, it was perfectly 8 logical that Agent Dobyns was surprised at the sight of the defendant at Club Congress that 9 night. 10 C. The United States did not direct representatives from CCA to question the defendant. 11 Representatives of CCA did not question defendant regarding the charges pending against 12 him. 13 The United States submits that the best evidence of the activities of CCA representatives is

14 the account set forth in defendant's Exhibit 11, the letter to defendant's counsel from Daniel 15 Struck, counsel for CCA. As revealed therein, CCA representatives were not directed to speak 16 to the defendant by law enforcement, they did so of their own accord following an incident at 17 the facility. Furthermore, they did not question the defendant regarding the charges pending 18 against him. Finally, it appears that defendant did not make any statements to the CCA despite 19 their request to speak to him. 20 II. Legal Analysis 21 In the present case, defendant has asserted a violation of his Sixth Amendment right to

22 counsel. The defendant bases his claim on Massiah v. United States, 377 U.S. 201 (1964), and 23 some of its progeny. In Massiah, after the defendant had been indicted for violating federal 24 narcotics laws, the government used a codefendant to elicit information regarding the pending 25 indictment, recorded said information, and used it against the defendant at his trial. This conduct, 26 and only this conduct, was subject to the opinion in Massiah. 27 28
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"We do not question that in this case, as in many cases, it was entirely proper to continue

2 an investigation of the suspected criminal activities of the defendant and his alleged 3 confederates, even though the defendant had already been indicted. All that we hold is that the 4 defendant's own incriminating statements, obtained by the federal agents under the 5 circumstances here disclosed, could not constitutionally be used by the prosecution as evidence 6 against him at his trial." Id. at 207. 7 Clearly, the facts of this case are not in accord with those in Massiah. In the present case,

8 the government did not send in any codefendant or other agent to meet with the defendant, and 9 did not seek to elicit information regarding the pending indictment. The circumstances disclosed 10 in Massiah are not the circumstances of the present case, and as such, are not subject to the 11 holding in Massiah. 12 The defendant also cites Fellers v. United States, 540 U.S.519 (2004), presumably for its

13 more recent date of decision, 2004, than its factual applicability to the present case. In Fellers, 14 government agents went to the defendant's home, where they presented him a copy of his 15 indictment, a warrant for his arrest, and then tried to interview him about the charges in the 16 indictment, none of which occurred in the case at bar. More helpful to this Court than the citation 17 presented by the defendant is the following: 18 "We have held that an accused is denied "the basic protections" of the Sixth Amendment

19 "when there [is] used against him at his trial evidence of his own incriminating words, which 20 federal agents...deliberately elicited from him after he had been indicted and in the absence of 21 his counsel."Id at 523, citing Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 22 L.Ed.2d 246 (1964). 23 Clearly, Agents Dobyns and Kozlowski did not seek out McKay, nor did they deliberately

24 elicit any incriminating words from him. Furthermore, at the time Agents Dobyns and Kozlowski 25 encountered McKay at the Club Congress, the defendant was not yet charged with Counts Eight 26 and Nine of the Second Superseding Indictment, accordingly, the use of McKay's statements 27 28
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1 against him in Counts Eight and Nine do not run afoul of either the Sixth Amendment or the 2 holdings in Fellers and Massiah. 3 The Ninth Circuit unambiguously held that the Sixth Amendment right to counsel is case

4 specific, and defendant had a right to counsel only on the offenses for which he had been 5 indicted, and on any other offenses that constituted the "same offense" under the Blockburger 6 test. United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003). In the present case, even 7 by the defendant's own admission, there was no discussion regarding the offenses for which 8 defendant had already been indicted, hence no violation of defendant's Sixth Amendment rights. 9 III. Conclusion 10 Much of the factual material at issue in the defendant's motion was addressed at the hearing

11 of defendant's motion to modify release conditions. As at the March 7, 2005, hearing, the 12 defendant claims the agents went to the Club Congress to see him. However, the proof offered 13 at the hearing, that Agent Dobyns made a provoking phone call, is not offered in this motion. In 14 the motion, defendant's proof consists of his own uncorroborated belief, and the testimony of 15 three witnesses that the agents wore "motorcycle club attire". Underwhelming evidence in the 16 government's opinion, particularly as balanced against the contemporaneously drafted 17 investigative reports that clearly show Agents Dobyns and Kozlowski were in the middle of 18 other matters at the time in question. 19 Equally bereft of proof is defendant's allegation that the agents were wearing recording

20 devices on the night in question, an allegation also made at the release hearing. The only proof 21 cited by the defendant is, that during the Hells Angels investigation, the undercover agents wore 22 recording devices. In the defendant's mind, this leads to the conclusion that the agents always 23 wear recording devices while undercover. This conclusion is incorrect, and it isn't hard to 24 imagine why it is incorrect. A great deal of undercover work is simply sitting at a bar or other 25 location and waiting to be approached. It is undesirable and wasteful to record hours of simple 26 socializing. When there is a particular target involved, and the agent expects to witness unlawful 27 activity, then it is both desirable and necessary to record events, and the agents do so. 28
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Another low quality assertion of the defendant was the deliberate misinterpretation of Agent

2 Small's affidavit. Defendant took a quote from the affidavit out of context, and pretended the 3 affidavit did not pertain to the investigation of the threats made by defendant on August 30, and 4 31, 2005. That the affidavit was used to provide a factual basis for the complaint against 5 defendant arising from said threats, somehow escaped the defendant's notice. 6 The number of unsubstantiated allegations in defendant's motion is surprising at first blush,

7 however, as this Court may recall, the defendant much desired to call Agent Dobyns to the stand 8 at the March 7, 2005, hearing. The United States believes that the same desire still exists, and 9 the defendant's barrage of unsubstantiated allegations is simply an attempt to create factual 10 issues where none exist, and to force the government to call Agent Dobyns to refute them. 11 "All that we hold is that the defendant's own incriminating statements, obtained by the

12 federal agents under the circumstances here disclosed, could not constitutionally be used by the 13 prosecution as evidence against him at his trial." Massiah at 207. 14 Nowhere is there proof of the circumstances that existed in the Massiah case, where

15 government agents deliberately placed an informant with the defendant to discuss the pending 16 charges, recorded the conversations, and used them to prove the pending charges. Such were the 17 "circumstances here disclosed" and they are not present in this case. 18 Wherefore, based upon the foregoing, the United States respectfully requests this Court deny

19 the defendant's motion in its entirety, and do so without evidentiary hearing. 20 Respectfully submitted this 21 22 23 s/Timothy T. Duax 24 25 26 27 28
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10th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

TIMOTHY T. DUAX Assistant United States Attorney

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CERTIFICATE OF SERVICE
I hereby certify that on August 10, 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:

Barbara Lynn Hull [email protected]

S/Katherine Kolarik

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