Free Memorandum - 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 12th PRETRIAL MANAGEMENT MEMORANDUM (Assigned to The Honorable David G. Campbell)

All Defendants, through undersigned counsel, hereby submit the following Pretrial Management Memorandum as ordered by this Court January 12, 2006. Relevant Background This Court has throughout this case entered numerous Orders directing the Government to comply with its discovery obligations. In response to the defense discovery of previously undisclosed wiretaps, the existence of which the Defendants discovered, this Court instructed Mr. Duax of the Government's obligation to review the materials in its possession to determine which information must be provided the defense. On October 21, 2005, Patrick Schneider of the United States Attorney's Office, in response to this Court's Order for appearance, avowed to this Court that the Government had complied with its discovery obligations in full and avowed

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that his office takes this Court's Orders very seriously. The Court extended an opportunity to the Government to verify Mr. Schneider's avowal and complete disclosure by November 4, 2005, reaffirming the Court' s position that the Government has an affirmative duty regarding disclosure. The Government filed its 12th Management Conference Memorandum, again avowing all disclosure had been provided. Defense Position on Case Status Defendants have, in numerous pleadings, preserved for the record the known and believed failures of the Government in disclosure. In those pleadings and in open court, Defendants have requested evidentiary hearings requiring the ATF agents involved in this case to testify. The basis for this request has rested in part on the fact that, through continuing investigation of this case, it is quite clear to the defense that the agents have been running this prosecution. Defense counsel asked in open court that the Government be ordered to present its agents to either avow to the Court that all disclosure has been made or for the agents and the Government to explain why it had not. On January 6, 2006, the Government filed a "Government's Notice of Potential Discovery," stating that, "[o]n January 3, 2005 [sic], during a meeting in preparation for trial, the United States Attorney's Office learned from ATF that there are additional materials "recordings and documents summarizing those recordings" that were not previously known to the United States Attorney's Office or given to the United States Attorney's Office." On January 11, 2006, this Court issued its Order directing that, "Counsel for the Government shall file a detailed description of this material on or before January 13, 2006."

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Defendants enter their formal and unconditional objection to this procedure. The Government has now filed for a protective order on at least some of this disclosure, apparently taking only a matter of days to review and assess that need. Defendants believe that ordering a description of the materials is an insufficient remedy for the late disclosure and that discussion of the matter should be closed. Defendants opine that the Government is again engaging in intentional delay, further prejudicing the Defendants, denying due process, and forcing even tighter time constraints on the defense for preparation of its case. In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court on habeas review in a murder case said: (W)e follow the established rule that the state's obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention... 514 U.S. at 421. Emphasis added. The Court further pointed out that the "prudent prosecutor will resolve doubtful questions in favor of disclosure." Id. at 439. The defense now fails to see the value of either of Mr. Schneider's October 21st avowals. Apparently the Government made those avowals with even first inquiring of its agents whether discovery was complete. What, then, about this Court's orders is being taken seriously by Mr. Schneider and his office? The Government is not only ignoring its affirmative duties regarding disclosure, but is disregarding orders to exercise those duties. At a very minimum, the Government should be ordered to explain why -after the Government has on more than one occasion avowed discovery is

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complete, and after this Court entered very specific instructions that the Government review the materials in its possession to verify all disclosure is complete -- the Government did not do so. In fact, one would assume that an inquiry of its ATF agents would be a logical first step in that inquiry. Either this was not done, or the agents have purposely withheld information. In either scenario, the Government must be held responsible for this failure and should soon be put to task for its blatant disregard of Court orders. The Government has made a mockery of those orders. Due Process The Government has hidden discovery to avoid timely and meaningful disclosure. They concealed the ROI of a confession by Mr. McHugh who said he, not Watkins or Kelly, beat up Gutierrez because Gutierrez made sexual advances toward McHugh's minor goddaughter. The one page ROI was hidden among pen register documents about wiretaps which the Government originally avowed had nothing to do with this case. The Court has set motion deadlines for the defense and expressed a preference for no sidebars at trial. Motions and sidebars are the primary means for counsel to communicate with the Court. The Government has even suggested one or a few attorneys be designated to do the cross-examination for all the other counsel. This is not a civil case; this not about money. It is a criminal case involving the rights and liberties of the accused persons. The Defendants expressly object to any designation of select counsel for questioning or to a waiver of any right of each Defendant to cross-examine each witness. The Government has turned a blind eye to some of the most fundamental principles of due process in a criminal case -- tampering with, delaying and even concealing disclosure -- then suggesting that counsel cannot speak for their own
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clients. Defendants request this Court ensure that if this case goes to trial that Defendants will receive all the trappings of due process as are normally afforded in criminal cases. Discovery Status For purposes of this Memorandum regarding the status of discovery, the Defendants incorporate all motions filed regarding disclosure violations, all oral argument made regarding disclosure violations, the several oral and written avowals of the Government that its obligations under Rule 16 have been satisfied, and the contradictory actions and pleadings of the Government evidencing its avowals have been disingenuous at best. Motion Status This Court granted an extension of time for the Government to file its responses, thus denying the Defendants the three-day holiday the defendants were to have utilized for replies, and given the fact the responses filed appear to present irrelevant and inapplicable law, Defendants request additional time, at least one week, to file its Replies to substantive motions. Additionally, Defendants ask that, if the Government is permitted to continue its practice of late- and nondisclosure, that all pretrial motion deadlines be suspended at least until Defendants' motions for sanctions based on discovery violations are resolved. RESPECTFULLY SUBMITTED this 17th day of January, 2006.
____/s/__________________________________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date.

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Courtesy 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] Copy of the foregoing Motion sent electronically this date to: Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected] ___/s/_________________________

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