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Charles Hayes: Motion for a 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:


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.


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


Please take notice that the foregoing Motion will come on for hearing at the Court's earliest convenience.


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

Posted here January 31, 1997
Web Page: http://www.aci.net/kalliste/