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 GRAND JURY TRANSCRIPTS (EXPEDITED HEARING REQUESTED)

Defendant, CRAIG T. KELLY, by and through his attorney undersigned, moves this 14 Honorable Court to order the production of the grand jury transcripts in this matter for the reasons 15 stated in the following memorandum of points and authorities. 16 RESPECTFULLY SUBMITTED this 14th day of December, 2005. 17 18 19 20 21 22 23 24 25 26 MEMORANDUM OF POINTS AND AUTHORITIES At the last pretrial conference, counsel for Defendants Kelly and Watkins informed this Court that they recently discovered an ROI hidden among pen registers for several wiretaps which the Government said had no bearing on the instant case. The ROI was a confession by McHugh who said he, not Kelly nor Watkins, assaulted Gutierrez. (See Exhibit 1, attached). It is clear that the Government tried to hide this confession, especially since "M1" referred Case 2:03-cr-01167-DGC Document 967 Filed 12/14/2005 Page 1 of 3 /s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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

to in the report, upon information and belief, is Jay Dobbins or Jaybird, the key ATF agent. Undersigned counsel has repeatedly asked for discovery relating to the "assault" and the Government has played games with the defense. In light of the Government's history of non disclosure and deception in this case, and in view of the dramatic impact of another person confessing to the crime with which Defendant Kelly is charged, it is almost a certainty that the Government did not present McHugh's confession to the grand jurors in any of the three grand jury hearings. Although a request for grand jury information is within the sound discretion of the Court, United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986), this Court should order disclosure of grand jury transcripts "when the party seeking them has demonstrated that a particularized need exists which outweighs the policy of secrecy". Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). Defendant Kelly has shown a "particularized need" for disclosure of the grand jury transcripts relating to any and all testimony which forms the basis of the assault allegations against him as contained in the transcripts for each of the three indictments. This motion is not a "fishing expedition" ; it is a request to obtain information which may serve as the basis of a motion pursuant to Franks v. Delaware, 438 U.S. 154 (1978). "[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the [search] warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendants' request." 438 U.S. at 155-56. Similarly, in the instant case, it is likely that the government's witness made a false statement

22 knowingly and intentionally or with reckless disregard for the truth; and said statement or statements 23 were necessary to the finding of probable cause for the grand jurors to render an indictment against 24 Craig Kelly. 25 Defendant Kelly has made the showing that someone other than he confessed to the crime 26 -2Filed 12/14/2005

Case 2:03-cr-01167-DGC

Document 967

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

for which he is charged. The Government can either present the person who testified before the grand jury that Defendant Kelly committed the crime in an evidentiary hearing or provide the grand jury transcripts of each time the witness testified that Defendant Kelly committed the assault. Either way, Defendant Kelly would be entitled to the transcripts. Due process and fair play require that the requested portions of the transcripts be produced forthwith. 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 967

-3Filed 12/14/2005

Page 3 of 3