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 DISMISS FOR DISCOVERY VIOLATIONS 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 Dismiss for Discovery Violations. The position of the 16 United States is that the flashlight defendant used to beat William Potter has been available to 17 the defense to view and photograph for the past three months, but defense counsel has refused 18 to cooperate with the government to effect a viewing of the flashlight. With respect to discovery 19 regarding William Potter, it is not the intention of the government to call Mr. Potter as a witness 20 as he has been uncooperative from the beginning. Two law enforcement officers witnesses the 21 beating, and the defendant plead guilty to an assault charge regarding the incident. That evidence 22 plus admissions made by the defendant to undercover law enforcement agents will be used to 23 prove the case against Mr. McKay. Consequently, materials that would be used to impeach 24 Potter's testimony are not discoverable. 25 // 26 // 27 // 28 //

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The position of the United States with respect to the defendant's Memorandum is set forth

2 in greater detail in the attached Memorandum of Points and Authorities. 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
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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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MEMORANDUM OF POINTS AND AUTHORITIES

2 The defense has repeatedly failed to avail itself of the opportunity to view the flashlight. 3 The flashlight in question is in the possession of the Tucson Police Department. As the

4 experienced defense counsel in this case know, items of physical evidence such as the flashlight 5 are not turned over to the defense to keep. The common practice is to arrange a time for defense 6 counsel to travel to the property room where the evidence is located and, in the company of a 7 representative of the custodial law enforcement agency, the defense may inspect, view and 8 photograph the item of evidence. 9 In this case, immediately after the October 21, 2005 hearing, undersigned counsel informed

10 counsel for the defendant that all she needed to do was call and we could arrange for a meeting 11 to view the flashlight. Undersigned counsel did not receive a call. The next time the flashlight 12 was mentioned was on December 14, 2005, in the defendant's motion. Undersigned counsel 13 immediately emailed defense counsel and repeated the earlier request for a telephone call to 14 arrange a time to view the flashlight.(See, Exhibit 1) Undersigned counsel received no call. 15 Again, after the hearing before this court on December 21, 2005, undersigned counsel inquired 16 of defense counsel why she had not called, and stated that if she wanted to view the flashlight, 17 she needed to call and arrange a time. As of the date of this Response, undersigned counsel has 18 received no call. In light of the foregoing, it seems the defense prefers making flashlight the 19 subject of a motion to dismiss, over actually seeing and inspecting it. 20 There are no medical records pertaining to Potter's injuries, and he will not be called by 21 the government as a witness. 22 The defense requested records of William Potter's injuries from the assault by defendant.

23 There are no medical records because Potter refused treatment. This is not to say his injuries did 24 not warrant medical attention. Defendant also requested material regarding a Pima County 25 criminal case, pretrial release records from that case and alleged Rule 11 examinations also 26 undertaken in Pima County Superior Court. The documents requested constitute material that 27 would be used to impeach Potter as a witness. The government does not intend to call Potter as 28
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1 a witness, nor is it in possession of the above-referenced records from Pima County. As a result, 2 there is no discovery owing to the defendant in that regard. 3 Wherefore, based upon the foregoing, the United States respectfully requests this court deny

4 the defendant's motion in its entirety. 5 6 7 8 9 10 11 12 13 14 15 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]

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