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 MCKAY'S REPLY IN SUPPORT OF MOTION TO SEVER (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits his Reply in support of his Motion to Sever. The Government has utilized three pages to outline its theory of the case. Its reference to the Laughlin incident being "provoked" by members of the HAMC has not been substantiated by the videotapes from those cameras that captured the event, as more fully addressed elsewhere. (Gov. Response, page 3.) The Government also alleges at page four that on June 21, 2000, alleged victim Potter "suffered significant physical injuries." (Gov. Resp., page 4.) The Government has failed to produce any documentation or evidence of any injury at all, let alone significant, as more fully addressed elsewhere. The Government continues its theory of the case by alleging that Mr. McKay allegedly did nothing more than attend a debt collection ruse. (Gov. Resp., page

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5.) Yet the best case scenario laid out by the Government is that Mr. McKay was merely present, and an undercover agent paid him for his time. Clearly, the Government here created facts on its own and then attempts to use those facts against Mr. McKay. But then, that's the entire posture of this case. That and the Government's hope that the spillover from Laughlin sufficiently covers each and every defendant. The Government cites to U.S. v. Taren-Palma, 997 F.2d 525 (9th Cir. 1993) for the proposition that, to prevail, Mr. McKay must demonstrate that the evidence was so complicated or so overwhelming as to prevent the jury from separating it and applying it only against whom it was offered. Then the clear agenda to use that very spillover against Mr. McKay is expressed at page 10: " In the government's view, McKAY was an integral part of the conspiracy and this enterprise. Despite the fact that McKAY was not present at the time of the Laughlin incident, he is not divorced from the actions of coconspirators that are involved in murders and other crimes." Again, the Government demonstrates its continuing attempt to shift the burden of proof. It is the Government's job to prove the elements of the case. If Mr. McKay is not present, has no involvement at all, then he is clearly divorced from the Laughlin incident. Spillover is the very tool the Government intends to utilize and, in this case, abuse. The Government's citation to United States v. Eufrasio, 935 F.2d 553 (3rd Cir. 1991 is not well taken. The Government response claims that the court upheld joinder even though " the codefendant was charged with a predicate act involving murder in [sic] which they had no knowledge or involvement." Quite the contrary. In that case, the 3rd Circuit found critical the Government's proof regarding Idone, the codefendant charged with the murder conspiracy, and his associates/codefendants that, " Associates and soldiers were required by mob rules
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to obtain their superiors' approval before conducting criminal ventures, and had to report their criminal activities and profits to these superiors. Capos supervised their crews and shared in the proceeds of crew crimes along with the enterprise's top leadership. . . . The function of soldiers and associates, and of the mob generally, was to make money by illegal means. More specifically, the enterprise's diverse purposes were `to control, manage, finance, supervise, participate in and set policy concerning the making of money through illegal means.' " Defendant Idone was charged with murder conspiracy. Codefendants who worked for him in his illegal gambling machine venture spanning several states, collecting gambling debts, about whose workings witnesses presented audio and video surveillance, wiretaps, and financial documentation. The Government presented wiretapped conversations involving codefendants wherein they jointly threatened physical harm in furtherance of the gambling enterprise to suppress competition. The murder conspiracy was an extension of those threats. Given the volume of evidence linking the murder conspiracy to the codefendants, the Court found codefendants there appropriately joined for trial. Research indicates this case has not been utilized either controlling or on point in either the 9th Circuit or the Supreme Court. The trial of Mr. McKay would take very little time. If the Government will not use Mr. Potter as a witness, does not have the flashlight used, and does not have medical records to establish serious injury, that portion of the trial will certainly be brief. As the Government has no evidence linking Mr. McKay to the Laughlin incident, has no evidence linking Mr. McKay to the Garcia murder, has no evidence to link Mr. McKay to anything but ATF agents' manufactured ruse, the Court' s rulings on relevance should shorten the trial considerably.
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This case is about individual events totally unrelated to each other, let alone to any type of organization. In its desperation to manufacture a case, the Government has charged separate offenses, involving distinct individuals and events, even in different states, in the clear hope that the jury will be so overwhelmed as to apply that evidence to everyone in the room. Conclusion Not only does Mr. McKay have nothing to do with any of the other events alleged in the indictment, it is those events, more particularly the seriousness of those events, that the Government hopes will, in and of themselves, convict Mr. McKay. That, and the fact that Mr. McKay has served 16 months in custody, support a severance in this matter. RESPECTFULLY SUBMITTED this 18th day of January, 2006.
__/s/ Barbara L. Hull_____________________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date. 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 at: [email protected] Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected]

____/s/ Barbara L. Hull_______________________

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