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 IN SUPPORT OF MOTION TO DISMISS (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits his Reply in support of his Motion to Set Aside his plea agreement and Dismiss regarding the Government's conduct in plea negotiations. Defendant first moves to strike the Government's Response, filed untimely, (Dkt. #1320) from page 6, line 26 through and including page 7, line 18 as irrelevant. This argument addresses standards to be applied to requests for withdrawal submitted after sentencing. This argument and case law are inapposite and should not be considered. Next, Defendant notes that the Government's Response, taking its stereotypical approach of aligning itself with the Court, first states that protestations of innocence have been "consistently rejected as fair and just reasons for withdrawal," (Dkt. #1320, pages 5-6) then argues that those protestations of

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innocence are "an important factor to be weighed." (Dkt. #1320, page 8, lines 5-6.) Clearly the Government missed the underlying message of Mr. McKay's pleading, as evidenced by their reference to him and his attorney being duped. Perhaps Mr. McKay's pleading should have taken the less diplomatic approach -- so as to portray the point more clearly for the Government -- by saying instead, and more succinctly, that the Government acted in bad faith in its plea negotiations and purposely misled Defendants. They negotiated in bad faith, secured the plea in bad faith, and now they utilize the negotiated plea agreement's factual basis against Mr. McKay, claiming it's misleading. Hoping not to put too fine a point on it, the Government alludes to what its agent claims happened at the confrontation at Club Congress and then turns around and states that Mr. McKay's plea colloquy "is misleading by omission." (Dkt. #1320, page 8, line 14.) The Government had an opportunity to reject the content of the factual basis proposed by Mr. McKay (proposed by him because it is true), but instead accepted that factual basis and willingly drafted it into the written plea. The Government now protests that the factual basis is misleading. By whose hands? Since the Government itself agreed to and drafted the plea agreement, they must be held by contractual law to be primarily responsible for its content. They must be saying, then, that they misled by omission. The only party engaging in misleading is the Government. The other point the Government clearly missed is that it has already deprived Mr. McKay, a human being, of a substantial portion of his life, of the remainder of both his parents' lives, and for what? Calling an agent a name. The Government knew long ago that it had no intention of proceeding to trial on any of the Defendants. This is clearly why they gave plea agreements in the fashion they

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did.

Defendant submits that this conduct was not performed in good faith, no The Court has in recent orders made clear its position regarding the

matter whom they' re now trying to protect. discovery withheld by the Government and whether the Government has acted in bad faith. While Defendant respectfully disagrees with the Court, the circumstances and tenor of this case have changed dramatically since Mr. McKay entered his change of plea. If this Court is disinclined to both set aside Mr. McKay's plea and dismiss his charges with prejudice, Mr. McKay asks the Court to reconsider his request for immediate sentencing, with which the Government took no position. Mr. McKay has already served more than the maximum twelve months allowed by statue for the misdemeanor pled to; he cannot receive prison for a misdemeanor, so supervised release is not available; probation is likewise not an option, since revocation would have no recourse. Also, Mr. McKay has demonstrated to Pretrial Services, as also found by Judge Anderson in December of 2003, he does not use either drugs or alcohol. Waiver of a presentence report and expediting sentencing is appropriate, as no greater sentence than has been served can be imposed. Mr. McKay has performed far more than any misdemeanor should require. He asks for an end to this. Finally, as addressed elsewhere, defense counsel will be commencing a fulltime job beginning April 3, 2006. Counsel and Mr. McKay, therefore, ask that this Court consider waiving a presentence report and sentencing Mr. McKay at its earliest docket opportunity. Counsel and Mr. McKay will make themselves available as the Court's docket will permit.

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Conclusion For the reasons stated, Defendant McKay asks this Court for the relief sought and for such other sanctions as the Court deems appropriate. RESPECTFULLY SUBMITTED this 23rd day of March, 2006.
__/s/ Barbara L. Hull_____________________

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

_/s/ Barbara L. Hull___________________

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