Free Motion to Produce - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13

JOSEPH E. ABODEELY (2683) Attorney at Law 1345 West Monroe St. Phoenix, Arizona 85007 Tel: (602) 253-2378 Fax: (602) 253-3342 E-Mail: [email protected] Attorney for Craig T. Kelly UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) 12. Craig T. Kelly, et al., ) ) Defendants. ) ______________________________) United States of America, No. CR-03-1167-PHX-DGC MOTION TO PRODUCE (EXPEDITED HEARING REQUESTED)

Defendant, CRAIG T. KELLY, by and through his attorney undersigned, respectfully 14 requests this Honorable Court to order production of certain items of evidence which the Defendant 15 needs in order to prepare for trial for the reasons stated in the following memorandum of points and 16 authorities. 17 RESPECTFULLY SUBMITTED this 14th day of December, 2005. 18 19 20 21 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 Defendant Kelly filed his Objection to Government's Ex Parte Memorandum In Support Of 24 Its Certification of Compliance With Rule 16 and Kelly's Motion to Dismiss with this Court on 25 October 14, 2005. 26 aforementioned motion. That motion and supplement are pending before this Court. On November 16, 2005, Defendant Kelly filed a Supplement to the /s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

Case 2:03-cr-01167-DGC

Document 968

Filed 12/14/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

The Government attorneys have a history of flagrantly violating principles of fair play and due process as embodied in the rules of discovery and case law in criminal cases. Brady v. Maryland, 373 U.S. 83 (1963); U.S. v. Aqurs, 427 U.S. 97 (1976); U.S. v. Bagley; 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995); and Rule 16, Federal Rules of Criminal Procedure. The Government attorneys have played fast and loose in disclosing, or not disclosing, all relevant, material, authentic, and complete video tapes (or true copies of the originals) which show crucial information about what happened in Laughlin, Nevada where two Hell's Angels were killed and one Mongol was killed. At the last case management conference, counsels for Defendant Watkins and Defendant Kelly [both of whom are accused of a Violent Crime in Aid of Racketeering (VCAR) for allegedly seriously beating up a Daniel Gutierrez] informed the Court that they recently discovered an ROI intermingled with pen register documents relating to several wiretaps. If the defense counsel had not demanded the discovery related to wiretaps which the Government argued to the Court were irrelevant to the instant case, defense counsel would not have found that ROI which is a confession from McHugh who admitted to committing the assault for which Kelly and Watkins are charged. (See Exhibit 1, attached). The Government attorneys or their ATF agents knew, or should have known about McHugh's confession and provided it over two years ago. Defendant Kelly moves this Court to order production of any and all other exculpatory evidence in the Government's possession relating to the assault on Gutierrez, to include all witness statements, the digital recording of Gutierrez' advances toward McHugh's 12 year old god-daughter, and the local police reports involving the reporting of the incident. There is no ROI or any statement provided by the Government to date which shows that Defendants Kelly and Watkins assaulted Gutierrez. This new revelation of McHugh's confession is an outrage and indicative of the misconduct of the prosecutors. This Court has been adamant about not giving the defense more time to file pretrial motions -2Filed 12/14/2005

Case 2:03-cr-01167-DGC

Document 968

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

although all the Laughlin, Nevada video tapes still do not appear to be authentic or complete and have only been disclosed on December 7, 2005, another day of infamy marking the Government's continued misconduct. Defendant Kelly asks this Court to be equally adamant in insuring that the prosecutors uphold their ethical and legal responsibilities to comply with discovery by producing complete, authentic, material video tapes of the casino original tape recordings and by producing all relevant and material information relating to the allegations of assault of Daniel Gutierrez. Defendant Kelly wants the requested items produced immediately; not 3 days before trial; not three weeks before trial; not 30 days before trial. RESPECTFULLY SUBMITTED this 14th day of December, 2005.

s/Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

CERTIFICATE OF SERVICE

I hereby certify that on December 13, 2005, I electronically transmitted the attached document to the Clerk of the U.S. District Court using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all counsel, and I emailed a copy to the Hon. David G. Campbell. s/ Joseph E. Abodeely

JOSEPH E. ABODEELY Attorney for Craig T. Kelly

Case 2:03-cr-01167-DGC

Document 968

-3Filed 12/14/2005

Page 3 of 3