UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LONDON
CRIMINAL NUMBER 96-60
UNITED STATES OF AMERICA, PLAINTIFF
VS.
CHALMER C. HAYES, DEFENDANT
A/K/A CHUCK HAYES
A/K/A CHARLES HAYES
MOTION FOR DIRECTED VERDICT
OR MISTRIAL
Comes the Defendant, by and through counsel, and moves this Honorable Court
for an Order directing a verdict in favor of the Defendant, as was moved for at
the end of the Government's case-in-chief or, in the alternative, for a mistrial
on the grounds that the primary Government witness has perjured himself on the
stand and that the Government failed to comply with Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18
U.S.C.A. & 3500 (West 1985) by not disclosing material that would have permitted
the Defendant to impeach the witness's credibility.
As grounds for his Motion Defendant states the following:
STATEMENT OF FACTS
1. Defendant was arrested by the FBI on October 22, 1996 and charged with
violation of Title 18 U.S.C. 1958, Use of interstate commerce facilities in the
commission of murder- for-hire. At his arraignment on October 23, a Detention
Hearing was scheduled for October 25, 1996.
2. At the Detention Hearing testimony was taken from three individuals, and
the Court relied mostly on the testimony of FBI Special Agent David Keller to
reach its conclusion of October 28 that the Defendant be held without bond and
that a trial of the Defendant be scheduled for December 2, 1996.
3. At some point thereafter, then-attorney for the Defendant, Hom. Warren
Scoville, was allowed to withdraw and thereafter Defendant proceeded pro se
under an agreement which would have allowed his agents access to Attorney
Scoville's law library and which would permit him to receive discovery material
from the Government. This did not take place as promised to the Defendant and on
Friday, the 22nd day of November, he filed Emergency Motions for Discovery
regarding material to which he was entitled but to which he had been denied
access. The majority of his Motions were immediately granted by the Court in a
hearing on November 26, 1996. At this hearing, the undersigned counsel entered
his appearance on behalf of the Defendant and, upon his motion, a continuance of
the trial date was granted and trial was set for Monday, January 13, 1996. The
Court, again, denied bond for Defendant.
4. During the interim between October 26 and January 13, 1997, the Court
overuled motions for the Defendant for Reconsideration of Bond Status and for a
Bill of Particulars. It was and is alleged by the Defendant that his continued
incarceration and prior lack of knowledge as to the identity of his accuser has
unconstitutionally denied him the ability to participate in preparing his
defense. In hindsight, the effect of this arbitrary denial has been to permit
the Government to present to the Court and the jury, as its key witness, a man
whose history, background and even name and identity are suspect, due to either
(1) the Government's incomplete investigative effort and blatant lack of due
diligence in substantiating his story or his offered testimony; or (2) the
Government's intentional withholding of information which the Government, in
fact, had in its possession but chose not to disclose. Defendant could have
properly prepared for this ruse by the Government had his Motion for Bill of
Particulars been granted or had he been free to perform his own background
investigation.
5. On January 13, 1997, the first day of the trial, and immediately prior to
the calling of the first witness, the undersigned counsel for Defendant was
handed the "rap sheets", (NCIC reports on criminal backgrounds) as the
Government put it, of two of their witnesses, John Anthony Hayes and Lawrence
Myers, for the purpose of limiting what items listed might be used for
impeachment of these witnesses by this counsel. Concomitant with handing these
documents to this counsel, the Assistant United States District Attorney (AUSDA)
addressed the Court with respect to the information contained in the report on
John Anthony Hayes. He drew the Court's attention to an old possession of
marijuana conviction. He also reported that there were no felonies on the record
of Mr. Myers and that as far as he could tell, there was only one charge dealing
with deceit and that was where Mr. Myers had walked out of a Waffle House
without paying the bill after a dispute with the manager. This resulted in a
Guilty Plea to a charge of Defrauding an Innkeeper. Moreover, the AUSDA said, he
would highlight that charge on the copy of the report he was handing to the
Court so that the Court could find it on the report more easily. Marking the
report, he handed it to the Court who asked again, "There are no Felonies on
here?" The United States' Attorney said, "no." The Court then ruled that
Defendant's counsel could only use the misdemeanor charge of Defrauding an
Innkeeper to impeach the Government's witness as to his honesty or dishonesty.
Defendant's counsel accepted that ruling without objection due to the United
States Attorney's representation to the Court and to counsel that nothing else
on that five (5) page report would legally qualify as impeachment evidence with
respect to its witness Lawrence Myers. This, of course, was later found to be
entirely untrue. There is no doubt that the discovery of the existence of an
incredible amount of highly damaging material, appropriate for use to impeach
the credibility of this witness from this report, was not only delayed, but
almost undiscovered altogether, because the Government, by its Courtroom
assertions and behavior, had intentionally directed the Court's and counsel's
attention to a misdemeanor conviction, an obvious red-herring, and away from the
notation on the second and third pages of the record which show a state ID
criminal number from California. There was absolutely no mention of California
during the discussion in Court as to the information contained in this report.
6. Thereafter, on the first day of trial, the Government called, as its
second witness, Mr. Lawrence Myers. This man testified that during the course of
his duties as a writer for a magazine called Media By-Pass, he contacted the
Defendant about doing a story about him for the magazine. According to Mr.
Meyers, he initiated telephone contact with the Defendant in June of 1995 and
after many such conversations, they met for the first time in June of 1996. He
further stated that after their first meeting, the Defendant began contacting
him by phone about finding a "wet boy" (assassin) to kill a "drug dealer" from
Louisville. This allegedly happened more than once over the phone with the
Defendant becoming more agitated with the passage of time. None of these calls
were ever recorded by the witness even though he initiated them, allegedly on
behalf of the magazine, a fact which gives rise to significant doubts as to Mr.
Myer's testimony as to the nature and contents of these discussions.
7. Further, through the testimony of Mr. Myers, the Government introduced its
first two (2) exhibits into evidence. One consisted of a copy of a fax allegedly
sent by the Defendant and, the second, a piece of paper containing the name,
address and phone number of Defendant's son typewritten at the top, with an
additional handwritten physical description of the son at the bottom. The
witness further testified that the Defendant had given him the paper with the
typing at the top and that the witness himself had written the description at
the bottom during a conversation with the Defendant during their second
face-to-face meeting on August 27, 1996. It is this witness's testimony as to
what allegedly occurred during that meeting, and what was said, that is the now
tainted core basis of the charge against the Defendant. Thus, it is on the
credibility, or non-credibility, of this witness that the jury must make
its preliminary decision as to the credibility of the Government's whole case.
8. Just prior to Mr. Myers taking the stand, the Assistant United States
District Attorney handed counsel for Defendant a seven or eight page typewritten
statement given to the Government by the witness and purported that only the
second half dealt with the witness's testimony and, again, based on the
Courtroom representations of the Government, Defendant's counsel agreed that
paragraphs 1 through 17 of the statement would not be used to attempt to
affirmatively impeach the witness, unless his testimony directly contradicted
the information contained in the statement. This was clearly an attempt by the
Government to divert attention from the fact that its own investigation into the
witness' background and credibility was, at least, incomplete and it wanted this
lack of due diligence, or perhaps manifest deceit by one or more of its agents,
to be cured by this counsel's agreement with respect to same. Again, counsel's
agreement was obtained, based only on the assertion of the Assistant United
States District Attorney that he didn't "think there is anything in those first
17 paragraphs that would be inconsistent or--it can be used for impeachment
purposes based on his direct testimony." (See Exhibit 1, page 29, Lines 16-19).
9. As a direct result, the ability of this counsel to effectively
cross-examine the Government's key witness was severely and detrimentally
limited by: (1) the Government's assertions as to the contents of official
records; (2) its lack of due diligence in ascertaining what other pertinent
information might be contained in its own official report as to the legal status
of its own witness; and (3) by the intentional marking of that report in open
Court in order to direct the Court's and this counsel's attention away from a
line on page two and three which would have inevitably led, then, to the
now-discovered facts that its witness, Mr. Meyers, had been (1) charged with
Felony Extortion in California in 1986, (2) committed to institution for mental
incompetency, (3) then released after pleading Guilty to an amended charge of
Attempted Grand Theft, (4) sentenced to 18 months, and (5) probated on the
condition that he not violate the law and comply with the terms of his release.
Perhaps most significantly, Mr. Myers failed to appear for his final sentencing
and now there is, predictably, a warrant issued for his arrest by the state of
California. The United States Government had, as its key witness in this
extremely serious matter, an extortionist and one-time mental incompetent whose
background was either glossed over and intentionally misrepresented by the
Government, or unknown to them because of a lack of due diligence. The
Government subpoenaed this man as their witness, accommodated him in its witness
room in the Federal Building in London, called him into the Courtroom and put
him on the stand under oath, and acted as if it simply did not know that he had
a Felony Fugitive warrant out on him from California.
10. The information contained in above-paragraph was not discovered about the
Government's witness, Mr. Myers, because of anything that the Government did at
any time during this trial process. This background of the Government's key
witness, rich with impeaching material, was discovered by this counsel only
after the third day of trial and two days after Lawrence Myers had been released
by the Government from its subpoena. As this Court is now aware, his information
was offered by law enforcement officials in Tennessee who became aware, through
news reports, that the person known as Lawrence Myers was a key witness in the
case against the Defendant herein. They felt an obligation to share with the
Court their experience with Mr. Myers and their view that he is absolutely
unreliable, probably perjurious and wanted in California as a fugitive.
11. This counsel received a note from a Court baliff at the defense counsel's
table on Wednesday afternoon, the third day of trial, on or about 4:00 p.m.,
instructing counsel to call a number in Tennessee regarding the records of
Lawrence Myers. At approximately the same time, an AUSDA left the Government's
table and returned shortly thereafter with a package of materials, the contents
which were unknown to counsel. When counsel returned to his office Wednesday
night and returned the call to Tennessee, the information about Mr. Myers
contained in paragraphs 9 and 10 above was obtained and verified through law
enforcement officials in Tennessee.
12. Counsel for Defendant then called the Assistant United States District
Attorney at about 9:00 p.m. that Wednesday evening and the United States
Attorney informed him that they had come into possession of the actual records
of this purported background on their witness that afternoon and they were
reviewing it even as we spoke to determine if it could be used against their
witness. And agreement was reached to bring it to the Court's attention the next
morning.
13. Accordingly, this information was brought to the Court's attention the
next morning after. The Court Overruled Defendant's Motion for a Mistrial but
granted Defendant's Motion for a Continuance until January 27, and, further, on
the Court's own, scheduled a Competency Hearing for Lawrence Myers providing he
returns to Court on that date. When asked if Mr. Myers was under subpoena, the
AUSDA replied that he didn't think so, but interestingly, that he had told Mr.
Myers that he was.
14. WHEREFORE, Defendant, by and through counsel, alleges that by virtue of
either the intentional actions or negligent inactions of the United States and
its agents and officials, its lack of due diligence, its withholding of vital
evidence which undoubtedly could have been used to seriously impeach their main
witness have operated to deprive this Defendant of a fair trial. This man's
testimony set the whole tone and tenor of the trial. He tarred the personality
and character of the Defendant from the very first. These actions of the
Government, with its slight of hand in the Courtroom concerning official
records, and its alleged inability to ascertain that its main witness was a
Felony Fugitive from California, whose arrest would likely jeopardize its case
against the Defendant, are shameful and all of them together, or each separately
considered, have operated to deprive the Defendant of a fair trial. The
Government's actions herein, at the very least, have such an appearance of
impropriety and so taint the rest and residue of the Government's case against
Defendant, that the only appropriate relief for the deprivation of this
Defendant's Rights is for this Court to grant Defendant's Motion to Enter a
Directed Verdict of Acquittal, made at the close of the Government's proof. In
the alternative, the Court should Order a Mistrial herein and give bond to the
Defendant, as this delay is entirely of the Government's own making and
Defendant's Constitutional rights have been and are being violated by his
continued incarceration without bond.
ARGUMENT
In the leading case wherein a primary Government witness perjured themselves
and where the Government failed to comply with Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C.A. &
3500 (West 1985) by not disclosing evidence which would have permitted counsel
to impeach that witness, the Court ruled that the Defendant was deprived of a
fair trial and ordered his conviction to be vacated. U.S. v. Kelley, 35
F3d 929, (4th Cir. 1994)
Citing Brady, supra, the Kelly Court stated,
emphatically, that "Suppression of exculpatory evidence by the Government that
is material to the outcome of a trial violates due process, irrespective of the
motivation of the prosecutor." Also, in addition to the disclosure of
exculpatory, "due process requires the Government to disclose material evidence
affecting the credibility of Government witnesses." Gigilo v. United States,
405 U.S. 150, 154, 92 St.Ct. 763, 766, 31 L.Ed. 104 (1972). Finally, 'Evidence
is material when "its suppression undermines confidence in the outcome of the
trial"--that is when "there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S. 667, 678, 682, 105 S.Ct.
3375, 3381, 3383-84, 87 L.Ed.2d 481 (1985).
The standard for determining what evidence is material is explained by the
Supreme Court in Kyles v. Whitley, No. 93-7927 4/19/95, wherein Justice
Souter held that "a showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed would have resulted ultimately
in the defendant's acquittal . . .", and that "Bagley, supra, does
not call for a 'sufficiency of evidence' test; that is, 'a defendant need not
demonstrate that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict."
The third and fourth aspect of materiality discussed by the Court in Kelly,
supra, include the position that "once a reviewing court applying
Bagley has found constitutional error there is no need for further
harmless-error review" and that materiality itself is defined "in terms of
suppressed evidence considered collectively, not item-by-item." Further, "this
imposes a burden on the prosecutor to learn of any favorable evidence held by
other government actors, such as the police, because 'the prosecution, which
alone can know what is undisclosed, must be assigned the . . . responsibility to
gauge the likely net effect of all such evidence and make disclosure when the
point of 'reasonable probability' is reached."
Kelly, supra, went on to conclude that the Court could not be
confident that the jury's verdict would have been the same had the withheld
evidence been disclosed in that trial and therefore the Court reversed Mr.
Kelly's conviction.
THEREFORE, for all of the reasons above-listed and including those reasons
preserved on the ongoing record of trial of this instant case, Defendant prays
this Honorable Court issue a Directed Verdict of Acquittal on such motion made
at the close of the Government's case, or, in the alternative, grant this motion
for mistrial and set a reasonable bond for Defendant, or allow his release to a
third-party cusodian as mistrial is the result of actions and inactions of the
Government and not this Defendant.
Respectfully submitted,
Gatewood Galbraith
P.O. Box 1438
Lexington, Kentucky 40591
606-277-1531
NOTICE
Please take notice that the foregoing Motion will come on for hearing at the
Court's earliest convenience.
CERTIFICATION
This is to certify that a true and accurate copy of the foregoing Motion was
served this 27th day of January, 1997 by hand-delivering same to the United
Stated District Clerk, Eastern District, P.O. Box 5121, London, Kentucky
40745-5121 and to United States Assistant District Attorneys Martin Hatfield and
Patrick Malloy, 1380 West Fifth Street, London, Kentucky 40741.
Gatewood Galbraith
Chuck Hayes
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