Free Order on Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

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

WO

IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, Plaintiff, vs. Craig T. Kelly (12); and Robert S. M cKay (16), et al., Defendants.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

) ) ) ) ) ) ) ) ) ) )

CR-03-1167-PHX-DGC ORDER

Defendants have filed several motions to dismiss based on t he G overnment's failure to comply with its disclosure obligations. See Docs. ##836, 944, 966. address these motions separately. I. Defendant Craig Kelly's Motion to Dismiss (Doc. #836). Defendant Kelly asks t he Court to dismiss this case because the Government did not timely disclose 51 videotapes related to the Laughlin shooting incident, but instead sent a letter to defense counsel explaining that the videotapes were available for purchase at a Nevada vendor. Defendant K elly also notes that wiretap evidence produced in this The Court will

case includes no minimization logs. On the basis of these omissions, Defendant Kelly asks that the indictment be dismissed. In an order dated January 27, 2006, t he Court addressed similar arguments from other Defendants and set fort h the legal requirements for dismissal on the basis of government misconduct. See Doc. #1132. The Court concludes that Defendant Kelly has not satisfied

Case 2:03-cr-01167-DGC

Document 1171

Filed 02/02/2006

Page 1 of 5

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 27 28

the high threshold of showing that the Government engaged in either outrageous or flagrant misconduct. See id. Nor has Defendant K elly attempted to show substantial

prejudice from the Government's failure to disclose the videotapes or minimization logs. Id. Defendant Kelly's motion will therefore be denied. II. Defendant Robert McKay's S upplemental Motion to Dismiss Laughli n Predicate Act (Doc. #944). Defendant M cKay asks the Court to dismiss the Laughlin predicate act on the basis of three events: the late disclosure of the 51 videotapes concerning the Laughlin incident , the incompleteness of chain-of-custody documents for the videotapes, and the fact that t he tape from VCR 42 does not begin until after the Laughlin shootings. addressed these discovery issues at the The Court

t w elfth and thirteenth case management

conferences. See Doc. ##1012, 1130. A s noted above, the Court addressed a similar motion to dismiss in an order dat ed January 27, 2006, setting forth the applicable legal s t andards. See Doc. #1132. Applying those standards, the Court concludes that Defendant M cKay has not carried his heavy burden of showing outrageous or flagrant misconduct by the Government, nor has he attempted to show substantial prejudice. H e therefore has not satisfied the requirements

for dismissal of the predicate act. See id. Defendant M cKay's sup p lement al motion will be denied. III. Defendant McKay's Motion to Dismiss for Discovery Violations (Doc. #966). Defendant M cKay seeks dismissal of Counts 6 and 7 of the indictment based on the Government's failure to disclose three categories of information: the flashlight allegedly

used by Defendant M cKay to beat William Potter, medical records resulting from M r. Potter's alleged injuries, and the plea agreement and other documents related to a Pima County Superior Court case against M r. Pott er. Defendant M cKay asserts that the

Government's failure to disclose this information violates Brady v. Maryland, 373 U .S. 83 (1963), that the evidence should therefore be excluded from trial pursuant t o Rule 16(d)(2), and that Counts 6 and 7 therefore must be dismissed. -2Document 1171 Filed 02/02/2006

Case 2:03-cr-01167-DGC

Page 2 of 5

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 27 28

The Government responds by stat ing t hat it has offered on three occasions since October 21, 2005, to make arrangements for defense counsel to inspect the flashlight, but that defense counsel has never accepted the offer or called Government counsel to arrange the inspection. The Government further asserts that there are no medical records of M r. Finally, the Government asserts

Potter's injuries becaus e he refused medical treatment.

that documents related to Potter's Pima Count y Sup erior Court case are irrelevant because they could be used only for impeachment and the Government does not intend to call Potter as a witness at trial. The Government asserts that Potter has never cooperat ed with law enforcement and that the evidence against M cKay will therefore consist of eyewitness testimony from individuals who allegedly witnessed M cKay's assault on Potter. In reply , couns el for D efendant M cKay asserts that she made clear at a

December 21, 2005 status conference that she wanted to review the flashlight and that arrangements nonetheless have never been made. She does not respond to the email dated

December 14, 2005, attached to the Government's response, in which counsel for the Government clearly asks her to contact him if she wants to view the flashlight. N or does

she respond to Government couns el's assertion that he first offered to have her examine the flashlight on October 21, 2005. It is evident that the Government is willing to permit examination of the flashlight and that counsel for both sides have had difficulty arranging for the examination. Such discovery difficulties do not rise to the level of outrageous or

flagrant Government misconduct warrant ing dismissal of Counts 6 and 7. See Doc. #1132. Nor has Defendants M cKay shown substantial prejudice from the delayed examination of the flashlight. Id. Counsel for Defendants M cKay should call couns el for the Government to arrange a time to inspect the flashlight. Doing so promptly w ill p ermit inspection of the flashlight well before trial. Defendant M cKay's reply concedes that there are no medical records for M r. Potter's injury, agreeing that Potter refused medical treatment. T he G overnment's failure

to disclose non-existent medical records obviously does not justify dismissal on the grounds of Government misconduct. -3Document 1171 Filed 02/02/2006

Case 2:03-cr-01167-DGC

Page 3 of 5

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 27 28

Finally, Defendant M cKay complains that t he Government has "withdrawn" M r. Potter as a witness, asserting that it did so only to avoid disclosing impeachment

information from his Pima County Superior Court case. Defendant M cK ay does not state when the Government previously asserted that it was going to call Potter at trial, nor does he dispute that Potter has been uncooperat ive from the beginning, refusing medical treatment immediately after the alleged beating and refusing to cooperate in the state court case against M cKay. It appears likely that Potter has never been a likely witness at trial in this case. M uch of Defendant M cKay's rep ly memorandum focuses on weaknesses in the Government's case that will aries if Potter does not t estify, but such weaknesses do not support M cKay's motion to dismiss for discovery violations. Defendant M cKay did not

file, nor could he have filed, a motion for summary judgment against the Government. Nor do alleged pretrial weaknesses in the Government's case, or even the Government's discretionary decision not to call a wit ness at trial, amount to the outrageous and flagrant misbehavior required for dismissal. Id. M oreover, Defendant M cKay does not explain how he has suffered substantial prejudice from the Government's refusal to dis clos e

impeachment evidence about a witness who will not testify at trial. In sum, Defendant M cKay has not carried his heavy burden of show ing t hat the Government engaged in out rageous or flagrant misconduct to his substantial prejudice. Id. Defendant M cKay's motion to dismiss Counts 6 and 7 will therefore be denied. IT IS ORDERED: 1. 2. Defendant Craig Kelly's M otion to Dismiss (Doc. #836) is denied. Defendant Robert M cKay's Supplemental M otion to Dismiss Laughlin

Predicate Act (Doc. #944) is denied.

Case 2:03-cr-01167-DGC

-4Document 1171 Filed 02/02/2006

Page 4 of 5

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 27 28

3.

Defendant Robert M cKay's M otion to Dismiss for Discovery Violations

(Doc. #966) is denied. DATED this 1st day of February, 2006.

Case 2:03-cr-01167-DGC

-5Document 1171 Filed 02/02/2006

Page 5 of 5