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 McKay

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 DEFENDANTS' REQUEST FOR EVIDENTIARY HEARING; SUPPLEMENT REGARDING DISCLOSURE VIOLATIONS (Assigned to The Honorable David G. Campbell)

Defendants, through undersigned counsel, request an evidentiary hearing to determine whether the government has fully complied with its discovery obligations or has fully informed the court of the status of discovery at the time it sought protective orders and certified to the court and the defendants the status of discovery. On August 12, 2005 the government sought a protective order relating to specific Matrix Items. (Dkt. Nos. 780-781). The court granted a protective order as to some but not all of the Matrix Items. (Dkt. No. 844). On October 21, 2005 the Patrick Schneider, the Chief of the Criminal Division of the United States Attorneys Office certified that he had reviewed the entire discovery and there was "nothing [it] was withholding except the materials in the stack delivered to the [Court's] office." Transcript, 10/21/05, p. 15, ll.22-25. These documents included the two-week and six-week materials only. 10/21/05, p. 9. ll. 7-12. Mr. Schneider certified to the court and the parties that

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"by November 4, [2005] all that should be disclosed to the defense will have been disclosed." Transcript, 10/21/05, p.26, ll.4-7. The court also stated that if the government believed any of these items needed to be subject to a protective order, it must file an application for a protective order by November 4, 2005. P.14, ll.17-18. On November 4, 2005, the government filed a supplement ex parte application for a protective order (Dkt. No. 884). On December 27, 2005, the court granted the supplemental application. (Dkt. No. 1012). However, the government was required to file ex parte, a table to identify the items withheld from the defendants by January 13, 2006. (Dkt. No. 1012), p.2. 1 On January 6, 2006, the government filed "Government's Notice of Potential Discovery" (Dkt. No. 1027). The government stated that on January 3, 2005 (sic) it was "made aware of new material in the possession of law enforcement that may be discoverable in light of the previous orders of this Court." The government claims that it "learned from ATF that there were additional materials (recordings and documents summarizing those recordings) that were not previously known to the United States Attorney's Office or given to the United States Attorney's Office." (Dkt. No. 1027) On January 17, 2006, the government filed a second supplemental ex parte application to defer certain discovery (Dkt. No. 1056). On that same day, the court entered a protective order on the government's supplemental application filed on November 4, 2005. (Dkt. No. 1078).2 The Court's order addressed only non-disclosure of Matrix items, not other non-disclosed and unidentified material. On January 27, 2006, the government requested an extension to file the Government's amended second supplemental ex parte application. (Dkt. No. 1127). The court ordered the

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To date, the government has not complied with this court's order to publicly file amended "two week and six week" notice with a bate stamp list of the withheld documents. The defense again requests that the government identify the additional Matrix items that are withheld and a bate stamp list with a description of the items withheld. The last list filed by the government was on October 20, 2005 (#852).

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supplemental application to be filed by February 3, 2006. There is no filing on the public record that gives notice of the government's filing. 3 On February 7, 2006 the government sent certain defense counsel the letter attached as Exhibit 1. The government's letter concerns the "newly discovered evidence" referenced in Dkt. No. 1027. The letters are cryptic at best. After two years of discovery disputes and numerous court orders regarding disclosure of discovery, the government's certification on October 21, 2005 is not only hollow but appears untrue. The government repeatedly represented that the only material it has not disclosed to the defense and sought a protective order for was the "two and six" week material. (Dkt. No. 884). In its letters, the government claims that it has a protective order relating to this unknown material but still finds it necessary to notify the defense of the internal dispute prior to negotiating pleas4. It appears this letter is to protect itself from any claims of violation of Brady, Giglio and Kyles as well as 28 U.S.C. §2255 claims. The defense requests an evidentiary hearing to determine among other things; 1) when this discovery was known to the government; 2) where this discovery was physically located; 3) when the government "learned" of the existence of this discovery; 4) when Agent Slatella informed the government that it had the discovery or knew of the discovery; and 5) whether the court was informed of this "internal agency" dispute at the time it heard the government's supplemental application for a protective order. If this discovery was in the constructive possession or control of the government at the time it certified that all discovery had been reviewed and disclosed (but for the "two and six

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The order refers to the application as document #1061 which appears to be another sealed document. The government's public notice of its application for a protective filed on November 4, 2005 is #884. 3 As previously done and requested in this case, the government is required to file a public notice to the defense as to what is seeks to withhold. 4 The public record does not reflect when the second supplemental protective order was granted.

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week" material) coupled with repeated instances of non -disclosure by the government5 and the court's prior orders, the government's prior representations are seriously in question. This court has repeatedly stated that the government's conduct thus far has not risen to the level of "flagrancy" that supports real sanctions against the government but it has only been representative of negligence or incompetence. The government's letter indicates that more than negligence or incompetence is in play and the defense has the right to explore and make a record on whether the government has made true and accurate representations to this court during its ex parte proceedings, public proceedings and pleadings as to the discoverability of material it has withheld from the defense in this case. The defense has asked the Court on other occasions to require the Government to present one or more of its ATF agents so the Court might justly determine what, if any, disclosure violations have been occasioned at the hands of the Government. The defense believes that this letter is yet another example of why such a hearing is essential. Government avowals should no longer suffice, as their credence has been clearly called into question. RESPECTFULLY SUBMITTED this 14th day of February, 2006.

____/S/_Barbara L. Hull______________ Barbara L. Hull, Attorney for Mr. McKay Original electronically filed this date.

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At the February 9th hearing, Defendant McKay again broached that the Government has withheld clear Brady material by failing to disclose Las Vegas police reports relating to the April 27, 2002 kidnapping of a Ramada Express employee by a member of the Mongols motorcycle club, forcing that driver to pick up Mongols president, Pinney, who was injured in the Laughlin incident and escorted to a back exit by Harrah's security personnel.

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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/_Barbara L. Hull______________

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