Free Motion for Miscellaneous Relief - 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 MOTION TO SET ASIDE PLEA AGREEMENT AND NOTICE OF JOINDER (Assigned to The Honorable David G. Campbell)

Pursuant to Rule 11(d)(2)(B), Federal Rules of Criminal Procedure, Defendant, Robert McKay, through undersigned counsel, hereby moves that this Court set aside his plea agreement entered on February 16, 2006 for the reasons set forth in the attached Memorandum of Points and Authorities. Mr. McKay next would enter his joinder in part in the Response to Motion to Dismiss (Dkt. #1281) filed by Defendant Augustiniak as set forth more fully in the attached Memorandum. RESPECTFULLY SUBMITTED this 27th day of February, 2006. __/s/ Barbara L. Hull________________ Barbara L. Hull, attorney for Mr. McKay

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MEMORANDUM OF POINTS AND AUTHORITES Relevant Background Mr. McKay incorporates herein the background set forth in Augustiniak's Response to Motion to Dismiss. Mr. McKay adds the following: Mr. McKay was detained in September of 2004 on this case. In February of 2005, while Mr. McKay was incarcerated, Mr. McKay's father passed away. The Government would not stipulate to his release for attending the funeral, and the Court denied Mr. McKay's request to attend the funeral in Illinois. On the date of the funeral, Mr. McKay's mother was undergoing chemotherapy, having contracted cancer and experiencing the advanced stages of the disease. In May of 2005, also while Mr. McKay was incarcerated, Mr. McKay's attorney and friend, Mark Redondo passed away. Mr. McKay was unable to attend the funeral. In August of 2005, also while Mr. McKay was still incarcerated, Mr. McKay's mother entered a hospice. This Court granted Mr. McKay's request for leave for two weeks to visit her. He returned to Illinois on Wednesday, September 3, 2005. By the time he arrived, his mother's health had deteriorated to the point that she did not recognize her son. Mr. McKay's mother passed away three days later. At no time during his detention was Mr. McKay offered a plea agreement. On Tuesday, February 14, 2006, the Government offered a plea agreement to Mr. McKay whereby he would plead guilty to an Information charging him with a misdemeanor threatening of a federal agent. In exchange for his agreement to enter that plea, the Government for the first time offered to agree to Mr. McKay's release from detention. On advice of counsel, Mr. McKay accepted the plea, and it was entered on February 16, 2006.

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Argument All of the charges against Mr. McKay arising from the second superseding indictment are still pending, as well as the charge arising from the Information filed on February 16, 2006 in conjunction with the subject plea agreement. Therefore, Mr. McKay has standing to demand disclosure of all of the withheld information listed in the Response to Motion to Dismiss filed by Augustiniak this date. He therefore joins in that demand. Further, Mr. McKay asks that this Court exercise its authority to set aside the plea agreement entered on the basis of manifest injustice. The defendant has the burden of demonstrating a fair and just reason for withdrawal of a plea, see Rule 11(d)(2)(B); however, the standard is applied liberally. See Garcia, 401 F.3d at 1011; Ortega-Ascanio, 376 F.3d at 883; United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998); see also United States v. Signori, 844 F.2d 635, 637 (9th Cir.1988) (stating that a motion to withdraw a plea pre-sentence should be "freely allowed"). "Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." Ortega-Ascanio, 376 F.3d at 883. United States v. Davis, 428 F.3d 802 at 804 (9th Cir. 2005), emphasis in original. See also United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005). Quite frankly, Mr. McKay and his counsel were duped. The Government has demonstrated a lack of candor with both the Court and with the Defendants. The Government clearly has intended for some time to not proceed to trial. What is particularly reprehensible in the mind of undersigned is the fact that, not only has Mr. McKay been severely punished -- not only by excessive detention, but by the loss of family members and a substantial loss of income -- for nothing more than calling an agent a "punk bitch," he and other defendants have been forced to
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suffer extremely for a case the Government has the unmitigated lack of integrity to dismiss only after deceiving certain defendants into a plea agreement with inducements such as release from custody, which release was long overdue. In the mind of undersigned, for what limited worth that might have, this case seems to have been constructed for no other purpose than to satisfy the egos of certain ATF agents. What seems to go either ignored or forgotten by too many is the fact that, regardless of what these agents or the Government or anyone else think of them or what they may or may not have done, this case deals with human beings. Not only have the defendants suffered and not only has the Government necessitated a waste of a grotesque amount of citizens' tax money, attorneys and staff representing these defendants have devoted immeasurable time and sacrificed considerably both professionally and personally in defending what the defense has known all along was nothing more than an unfounded and unwarranted, yet legitimized form of harassment. Undersigned submits that the Government has known all along, as well, but has refused to do what is just. The sequence of events over the past two months, only some of which have been exposed, demonstrate the Government' s plan to try to trick some into a plea, knowing it intended to dismiss against those who remained. This conduct on the part of the Government is not geared toward justice. It is geared toward securing plea agreements by deceit where inticements of freedom can be utilized. The supervisory power of the courts allows this Court to do whatever it deems appropriate to sanction the government' s disregard for the administration of justice. In light of the primary emphasis placed on vindicating the recognizable institutional goals of the courts, it should come as no

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surprise that the supervisory power has frequently been used by federal courts as a means of sanctioning and deterring prosecutorial misconduct. [FN44] "An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice." United States v. Basurto, 497 F.2d 781, 793 (9th Cir.1974) (Hufstedler, J., concurring). Footnote 44 notes that the supervisory power of the courts has been used in many contexts, including to punish improper practices by federal attorneys, United States v. Hale, 422 U.S. 171, 180 & n. 7, 95 S.Ct. 2133, 2138 & n. 7, 45 L.Ed.2d 99 (1975). Had undersigned known that all those defendants who would hold out and ignore the temptation of long overdue freedom would have their charges dismissed, or had she known of the government' s plan, she never would have allowed Mr. McKay to change his plea. Calling an ATF agent a "punk bitch" and marring his ego is the only reason Mr. McKay spent 18 months in detention. Counsel now sees why this flimsy-at-best factual basis was agreed to by the Government. Counsel asks that her error be rectified by setting aside the plea and allowing Mr. McKay to join in the motions to dismiss with prejudice, one of which has been filed by Mr. Augustiniak.

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Conclusion Having satisfied the requirements of Rule 11(d)(2)(B) by demonstrating a fair and just reason for withdrawing from the plea, Mr. McKay asks that this Court enter its Order allowing him to withdraw from his plea to the information and thereby join in others' request that all charges contained in the second superseding indictment be dismissed with prejudice based upon the malfeasance of the Government outlined in those pleadings, in particularly that filed this date by Mr. Augustiniak. Mr. McKay also asks that this Court enter its Order directing the Government to disclose all previously withheld discovery. RESPECTFULLY SUBMITTED this 27th day of February, 2006.
______/S/___Barbara L. Hull_____________

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

____/S/_Barbara Hull___________

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