Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Robert McKay, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL DISCOVERY No. CR-03-1167-PHX-DGC

The United States of America, by and through counsel undersigned, hereby responds to

15 defendant Robert McKay's Motion to Compel Discovery. The defendant has requested, on 16 December 14, 2005, operations plans of Agents Dobyns and Kozlowski for the month of August 17 2004. The request is made pursuant to Rule 16(a)(1)(E) Fed. R. Crim. P., but the defendant's 18 motion makes no showing of materiality as required by that Rule. Furthermore, operations plans 19 are within the ambit of Rule 16(a)(2), and are generally not discoverable absent the required 20 showing under Rule 16(a)(1)(E). Finally, the request is overbroad, as it calls for the disclosure 21 of all operations plans whether they pertain to the instant case or not. 22 Operations plans are internal documents used by law enforcement to communicate the

23 details of surveillance, undercover or tactical entry operations. They include strategies and 24 practices regarding those operation, and if such strategies and practices were generally known, 25 criminals could use the information to thwart such operations. For example, during the course 26 of undercover operations there are certain events that will trigger the termination of the 27 operation. If that information were publically available, it would be a useful tool for criminals, 28 and it would make such operations much more dangerous for the agents.

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The United States believes, based upon previous motions more than the sparse content of

2 the present motion, that the defendant is looking for information to support his theory that 3 Agents Dobyns and Kozlowski were engaged in an operation against him on the night of August 4 30, 2004. To rebut the defendant's theory without needlessly disclosing internal ATF

5 memoranda regarding tactics and strategies, the United States intends to disclose the operations 6 plans requested in redacted form. The United States intends to produce the portions of the plans 7 that identify the purpose of the operation, and the locations and agents involved. 8 The United States does not believe it is legally required to do this, but does so nonetheless

9 in an effort to resolve the issue. It will take approximately two to three days to obtain the reports, 10 and a couple of days to prepare the redactions. The non-redacted material will then be given to 11 the defense. 12 The defendant's motion is untimely, overbroad, legally insufficient pursuant to Rule

13 16(a)(1)(E), and precluded by operation of Rule 16(a)(2). As a consequence, the United States 14 respectfully requests this Court deny the defendant's motion in its entirety, leaving the United 15 States free to produce such material as previously set forth in this Response. 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 17th day of January, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

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1 I hereby certify that on January 17, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], 8 [email protected] 9 Alan Richard Hock, [email protected] 10 Thomas M Hoidal, [email protected], [email protected] 11 Barbara Lynn Hull, [email protected] 12 13 14 15 16 17 18 19 20 21 22 s/ Timothy Duax 23 TIMOTHY T. DUAX 24 25 26 27 28
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David M Ochoa, [email protected] Jose S Padilla, [email protected], [email protected] Mark A Paige, [email protected] James Sun Park, [email protected], [email protected],[email protected] C Kenneth Ray, II, [email protected] Brian Fredrick Russo, [email protected], [email protected] Michael Shay Ryan, [email protected], [email protected] Philip A Seplow, [email protected], [email protected] Robert Storrs, [email protected], [email protected]

Case 2:03-cr-01167-DGC

Document 1082

Filed 01/17/2006

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