Free Reply to Response - 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 DEFENDANT'S REPLY IN SUPPORT OF MOTION TO DISMISS FOR DISCOVERY VIOLATIONS (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits his Reply in support of his Motion to Dismiss for discovery violations regarding the alleged assault by Mr. McKay against William Potter. Defendant first notes that, as in the Government's Response regarding Mr. McKay's Motion to Sever, the Government makes no connection, either factually or legally, of any of the acts alleged to have been committed by Mr. McKay to the HAMC as required by the indictment. This divorce is more fully addressed later in this pleading. As outlined in his motion, Mr. McKay is charged with 18 U.S.C. §1959(a)(3), Violent Crime in Aid of Racketeering. That section states: a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of
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gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished . . . This section requires that the Government establish the elements of either use of a dangerous weapon or resultant serious injury. Therefore, either the instrument used must qualify as a dangerous weapon or there must exist proof that serious injury resulted, or both. 18 U.S.C. §930(g)(2) defines a dangerous weapon as follows: "The term `dangerous weapon' means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length." 18 U.S.C. §1365(h)(3) defines serious bodily injury as follows: (3) the term "serious bodily injury" means bodily injury which involves-- (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty Nowhere in 18 U.S.C. §921 is there reference to a flashlight. Nowhere in any definition of a "dangerous weapon" is a flashlight listed or even referenced. Defendant has sought to view the subject flashlight on several occasions, including the Joint Discovery Matrix, item 446. Undersigned counsel revisited the issue in court, and again revisited the issue with AUSA Timothy Duax after the status conference held on December 21, 2005. Undersigned's recollection of the conversation differs from that rendered by AUSA Duax in his Response. He
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claims that he offered viewing of the flashlight and did not receive a later telephone call to arrange such viewing. Undersigned recalls telling Mr. Duax in no uncertain terms in that conversation that she wished him to make arrangements for the viewing. She admittedly did not, therefore, follow that conversation with a telephone call to again request a viewing. Undersigned has again requested those arrangements be made prior to the hearing on this matter. Counsel will report to the Court on progress. Since the flashlight does not qualify as a dangerous weapon, one might proceed under the assumption that the Government' s theory is that Mr. Potter sustained serious bodily injury. Perhaps not unexpectedly, the Government now states in its Response that it will not call William Potter as a witness to his own alleged assault. Defendant points to the joint discovery matrix, item 447, which item addresses a federal case filed against Mr. Potter, this Court ordered that the Government disclose the discoverable portions by August 12, 2005. The Defendant' s motion also refers to the Pima County Superior Court case, the Rule 11 psychological evaluations, and the pretrial release orders allowing Mr. Potter to make out of state trips. The Defendant is entitled to that documentation not only as material evidence discoverable under Rule 16 and this Court' s previous orders that the information be disclosed. essential than merely material. The Government has previously been ordered to disclose the information requested, including this Court' s order reference Joint Matrix item number 447. The Government has never responded to any requests for this discovery, nor even after a Court order, by stating that it does not intend to call Mr. Potter. The Government apparently believes that, since it believes the evidence becomes
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irrelevant upon withdrawal of the witness, that it likewise becomes nondiscoverable. The Government cites no authority for this proposition, quite possibly because there exists no authority for this proposition. In fact, this Court should consider it suspect that the Government is seeking to avoid its discovery obligations, and possible sanction for its violation, by withdrawing names of witnesses only weeks prior to trial. Were Mr. Potter's testimony not essential for provi ng this charge, this action by the Government might be understandable, since Mr. Potter's credibility on all fronts would readily be seized upon by the defense once his criminal history, Rule 11 state proceedings, plea agreements and the like were pursued upon crossexamination. Instead, the Government claims to be able to establish this VICAR incident through the testimony of law enforcement officers. Apparently, the Government also expects to establish the extent of injuries to Mr. Potter without Mr. Potter, but rather with law enforcement officers who asked Mr. Potter if he desired medical attention. Mr. Potter refused medical treatment. In fact, he walked away from the incident, refusing to cooperate with law enforcement. One must inquire how serious the injuries could have been. This lack of cooperation by Mr. Potter, the inability to present medical personnel qualified to testify as to the extent of injury, and the obvious credibility issues attributable to Mr. Potter, caused the state prosecution to extend to Mr. McKay a misdemeanor plea disposition. This withdrawal of Mr. Potter as a witness this late in the game, choosing instead to rely only on law enforcement, is also suspect when one considers that none of the law enforcement officers witnessed what happened inside the business that provoked the incident. Mr. Potter is a known drug addict, apparently has an
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extensive criminal history and apparent mental health history, yet was afforded apparent leniency in his state prosecution. The defense acknowledges that this leniency might have been the result of cooperation with the Government. Most interesting, however, is that the Government claims in its Response to McKay' s Motion to Sever that Mr. McKay assaulted Mr. Potter " in order to terminate Mr. Potter' s relationship with the Hells Angels Motorcycle Club." (Dkt. #1081, page 4.) This element is essential, of course, to link the actions of Mr. McKay to the HAMC, the Government's theoretical illegal enterprise. Clearly Mr. Potter' s absence from trial removes any possibility that the Government can establish this link. The Government has disclosed no ROIs or electronic surveillance relative to the incident that occurred inside the business that belonged to Mr. McKay. No law enforcement witnessed the events inside Mr. McKay' s business. Therefore, it is not a VICAR and the charges should be dismissed in any event. The Government here seeks to avoid dismissal for discovery violations by withdrawing the witness. This tactic is not only disingenuous and without legal support, it does not shield the Government from sanction. It further calls into question why this Court should allow the Government to proceed on two VICAR charges against Mr. McKay without the only witness that can testify to any alleged link the purportedly illegal enterprise. The Government, in other words, loses nothing by this Court' s dismissal at this juncture of the counts involving William Potter. For the reasons stated, Defendant McKay asks that this Court for the relief sought and for such other sanctions as the Court deems appropriate.

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RESPECTFULLY SUBMITTED this 30th day of January, 2006.
__/s/ Barbara L. Hull_____________________

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

_/s/ Barbara L. Hull___________________

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