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Three Motions Filed by Chuck Hayes


United States District Court
Eastern District of Kentucky

Criminal Number 96-60
United States vs.
Chalmer C. Hayes a/k/a Chuck Hayes a/k/a Charles Hayes

Filed Dec. 19, 1996, at London
Leslie G. Whitmer, Clerk

[1] MOTION TO RECONSIDER BOND

Comes the Defendant, Charles Hayes, by and through counsel, and moves this Honorable Court for reconsideration of that part of its Order of November 26, 1996 wherein it Denied Defendent’s pro se motion to correct the Finding of Facts by this Court’s Magistrate in his Memorandum Opinion and Order dated October 28th, 1996 wherein he found, based on such Finding, that Defendant ought to be detained without bond pending trial.

The grounds for this motion are that the original Court was grievously misled by the alleged proof presented at the Detention Hearing on behalf of the government, much of which is impeachable by the most cursory of independent investigation. The government's careless use of hearsay and lack of research to substantiate that which it offered as proof to detain the Defendant prior to trial acts as an assault on Defendant's rights to Due Process and are most readily curable by this Court's immediate amendment of the Findings of Fact in the above-described Memorandum and which should should result in the setting of a Bond which Defendant has a fair chance of making or, in the alternative, for a new Bond Hearing wherein Defendant has a legitimate opportunity to address those spurious allegations which caught him by surprise at the original hearing.

This motion to Reconsider is timely filed and is the appropriate remedy for this Court to insure justice and the protection of the Defendant's Constitutional rights. This Motion would have been filed earlier but it has been delayed by circumstances and actions not of Defendant's doing and an explanation of which is contained hereafter.

Defendant was arrested on October 22, 1996 on a charge that he had caused another person to travel interstate and that he had used the mail and telephones all to arrange for the murder of his son. The original Bond Hearing for Defendant was held on October 25th, 1996 in front of United States Magistrate Judge J.B. Johnson and it is the Findings of Fact in his following Order dated October 28th, 1996 that Defendant sought to correct by his Motion to this Court heard (actually not heard but disposed of summarily by this Court) on November 26th, 1996.

In essence, the vast majority of alleged proof presented by the government at the Detention Hearing of Defendant was unsubstantiated, even though it could have easily been checked out for its truthfulness if the government had so desired and it is this disdain and disregard for possible exculpatory evidence that so taints the testimony of the lead prosecution witness at the Detention Hearing, Special Agent David Keller.

The government presented three (3) witnesses at the Detention Hearing for the purpose of trying to convince the Court that the Defendant presented a threat to flee or, in the alternative, represented a threat to the safety of another person or the community. These witnesses were FBI Special Agent David Keller, Defendant's ex-wife Guiamor Zink and Ms. Bridgette Cowan, a friend of Defendant's now-deceased mother.

The Court summarily and rightfully discounts the testimony of the latter two witnesses as having a "lesser degree of credibility" and continues that "Even if the . . . [Court] . . . only considers the testimony and evidence of Special Agent Keller, I find that by clear and convincing evidence that there is a serious risk that the Defendant will endanger the safety of another person or the community if not detained pending trial."

The Court therefore acknowledges that the testimony of Defendant's ex-wife and his mother's friend lacks the authenticity and credibility to serve as evidence meriting Defendant's detention. That being the case, then only the evidence proffered by FBI Special Agent Keller need be examined to determine whether the Court was mislead to concluding that Defendant should be detained pending trial.

Much of Agent Keller's testimony was obviously information he had gleaned from prior conversations with the other two witnesses that followed him to the stand. Mr. Keller's testimony is that "In just a short period of time, without really doing an extensive investigation, we have determined that--that--that there have (sic) been some confirmation of some neighbors that live in the vacinity . . . where Charles Hayes . . . has confronted tourists in the past, over the past several years utilizing a firearm device in connection with altercations that he has had with people . . ." (Exhibit One, Transcript of Hearing, page 15, line 12) Later we find that the less-than-extensive investigation conducted by this Agent and on which he based his testimony which resulted in the detention of Defendant consisted of talking with two witnesses whose testimony was later discounted by this very Court. The Defendant's obvious point here is that prejudiced and untrustworthy testimony from untrustworthy sources does not and should not be sanitized or rehabilitated simply because it is parroted by a government agent, and that same government agent has a duty to look beyond obviously self-serving sources of information to secure viable evidence as to whether a Defendant should be detained pending a trial of the case.

Here, if the testimony of Special Agent Keller at the Detention Hearing is redacted to reflect only that evidence gleaned from his sources aside from the two witnesses already discounted by the Court, then there is a distinct lacuna of viable evidence, or even hearsay, aside from the charge itself, which lends itself to believing that the threat of Defendant fleeing, or bringing harm to another person or the community outweighs his presumption of innocence or right to remain free pending trial.

The evidence offered by Agent Keller as a result of his "investigation", outside of that offered by Zink and Cowan, included a copy of a magazine entitled MEDIA BY-PASS, September 1996 edition, that features a cover photo of Mr. Hayes with a headline identifying him as the Angel of Death. While this qualifies as modern-day graphic theater designed to draw a reader's attention to the magazine, a quick reading of the story dispels any fear that Defendant represents a physical threat to any person, and that the moniker, Angel of Death, attaches to Mr. Hayes because of his political talent for ending the political careers of those politicians whom he and his associates consider corrupt. To find a person to be [a] threat to flee or to harm another person because of the nature of what amounts to their modern-day CB moniker is insufficient in the protection of his Constitutional rights.

The only other independent evidence uncovered by Agent Keller, "without doing an extensive investigation", is that be believes that Charles Hayes "has a page on the internet." (Exhibit Two, Ibid, p 19, line 9). He further states that an article taken from the suspected web page of the Defendant bears the by-line of a person name J. Orlon Grabbe and "I don't know exactly who J. Orlon Grabbe is, ..., but I suspect and have reason to believe that it's--very well could be Charles Hayes sitting in this courtroom." (Exhibit Three, Ibid, p 20, line 12)

Agent Keller then proceeds to read to the Court the above-described article and it is a real barn-burner, calling for possible gun-play and violence. The Court can't help but to have had its outlook towards the Defendant colored by the act of listening to the language of the article but the bare fact is that Defendant is not the author of said article and even the most cursory of investigations by Agent Keller would have revealed that and then he would not have had the opportunity to read such irrelevant and spurious material into the record while trying to influence the Court into detaining Defendant prior to trial. The fact is that Mr. Grabbe is a well-known and published author known to millions of readers and he could have been reached with a single phone call by Agent Keller but same was not forthcoming even though a citizen's freedom might have hung on its result. (It still may).

This misfeasance on the part of Special Agent Keller, offering evidence he knows is suspect and avoiding the effort to find out if it is true or not, taints all of the testimony on which this Court based its Findings of Fact and on which it thereafter detained the Defendant. Therefore, this Court should reconsider and correct its Findings of Fact in its Memorandum Opinion and Order dated October 28, 1996 and allow Defendant release on bond pending his trial, or, at the very least, reconvene Defendant's Detention Hearing to consider new testimony in protection of Defendant's Constitutional rights.

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 18th day of December, 1996 by mailing same to the United States District Court, Eastern District, P.O. Box 5121, London, Kentucky 40745-5121 and to United States Assistant District Attorneys Martin Hatfield and Patrick Molloy, 1380 West Fifth Street, London, Kentucky 40741.

GATEWOOD GALBRAITH

Exhibit 1

...which he was threatened by the defendant?

A. Yes, sir. On the day that he, John Anthony Hayes, was in Pulaski County, Kentucky, and when they filed--I think it was when probate was intially filed, I think it was in the beginning stages of probate on the estate, mr. Hayes threatened John Anthony Hayes to do bodily harm to him. And it was--I believe that took place at the premises there at Nancy, Kentucky, at the Beckett Motel area.

Q. Also, during this investigation, have you become aware of any instances where the defendant has either used or threatened the use of fire arms?

A. Yes, sir, I have. In just a short period of time, without doing an extensive investigation, we have determined that--that--that there have been some confirmation of some neighbors that live in the vicinity of the Beckett Motel where Charles Hayes resides, where Charles Hayes in the past several years utilizing a firearm device in connection with altercations that he has had with people parking in the vicinity.

MR. SCOVILLE: I want to--Judge, I know that this is a detention hearing and some hearsay is allowed, but this is--I mean, that someone said that someone said that some tourists at some time were accosted. I would like to test the veracity of that. ...

PERKINS & PERKINS COURT REPORTERS
1-800-550-3797

Exhibit 2

. . . powerful--powerful man and was afraid of him.

Q. I want to go back to the magazine for just a moment and your--or the characterization on the cover of the magazine as the angel of death.

Have you become aware during this investigation of any information on the internet concerning Mr. Hayes, the defendant?

A. Yes, Sir. I understand that according to the--he has a page--has a page on the internet.

Q. And as a result of that, did someone on your behalf, at your request, obtain some documents from the--from that internet page?

A. Yes, sir.

(A document was handed to counsel.)

MR. SCOVILLE: Can I look at this for just a moment, please?

THE COURT: Sure.

(A pause was had in the proceedings)

MR. SCOVILLE: Thank you.

(A document was handed to the witness.)

MR. HATFIELD: Your Honor, may I have what has been marked as government exhibit 2 shown to Special Agent Keller?

THE COURT: All right, sir.

BY MR. SCOVILLE:

PERKINS & PERKINS COURT REPORTERS
1-800-550-3797

Exhibit 3

Q. Do you recognize what has been marked as government exhibit number 2, Agent Keller?

A. Yes, sir, I do.

Q. And what is that?

A. It's a copy of a document that was taken off of the internet just within the last two days by an FBI agent.

Q. And does --

A. At my direction I asked him to query up whatever he could query up on Hayes, the angel of death, and also this J. Orlan Grabbie.

Q. Do you know who J. Orlan Grabbie is?

A. No, Sir, I don't know exactly who J. Orlan Grabbie is, the author of the article that I have in front of me, but I suspect and have reason to believe that it's--very well could be Charles Hayes sitting in this courtroom.

Q. And does--

A. The pen name of an author or pen name or another alias utalized by him to access the internet.

Q. Does that article refer to Mr. Hayes as the angel of death?

A. Yes, sir, it does.

Q. And does that article talk about anything to do with an area called Nancy, Kentucky?

A. Yes, sir, it does.

Q. And are you familiar with Nancy, Kentucky?

PERKINS & PERKINS COURT REPORTERS
1-800-550-3797

[2] ADDENDUM TO MOTION TO RECONSIDER BOND

Comes the Defendant, Charles Hayes, by and through counsel, and submits this Addendum to his previous Motion to this Honorable Court for Reconsideration of this Defendant's Bond situation.

This Addendum is necessary because, after rereading the transcript of the bond hearing, and after speaking with Defendant at length and after several weeks of experience with trying to protect this Defendant's right to a fair trial with an appropriate defense and all in the face of his incarceration in a detention facility 80 miles from his attorney, this counsel is more than ever convinced that the continued detention of Mr. Hayes, without bond, pending trial, puts Defendant at an Unconstitutional disadvantage, deprives him of his right to fully participate in the construction of his appropriate defense and all because of the ingenious assassination of Defendant's character carried off at the original Detention hearing.

In Defendant's original Motion to Reconsider, it was pointed out that United States Magistrate Judge J.B. Johnson held that Defendant was to be held without bond pending trial based solely on the testimony of Special Agent David Keller and without even considering the testimony of the two other witnesses that testified for the government at the hearing. We also pointed out that all of the testimony given by Special Agent Keller, that was gleaned from his conversations only with these two other self-interested witnesses, was just as infirm as a basis for depriving Defendant of his freedom pending trial as if it had come from their own mouths.

Defendant then observed that Special Agent Keller submitted only two other items of proof to the Court in his attempt to prove that Defendant would endanger the safety of another person or the community or that he might flee the Court's jurisdiction. These included an article about Defendant in a magazine and an article off the internet by a Mr. J. Orlin Grabbe. These couldn't possibly be the basis for detaining Defendant as the magazine discusses only Defendant's political propensities and his political nickname "Angel of Death," which was fully explained in the article. The internet piece, while containing some volatile material, was written by another person, which was easily ascertainable, and yet Special Agent Keller, under oath, said, about the author of the article, "I suspect and have reason to believe that it's-- very well could be Charles Hayes sitting in this courtroom." (Transcript, Detention Hearing, page 20, line 14)

It is precisely this method by Agent Keller of phrasing nonsense and nontruths in a personally sincere manner and putting his reputation as an investigator as added weight to induce acceptance of same that so taints the record throughout and renders his testimony at said Hearing to an obvious insufficient basis on which to detain Mr. Hayes without bond.

Agent Keller had no reason to believe that Defendant was the author of that article! Such a statement is manifest evidence of bad faith on the part of this government witness who is the key to Defendant's current detention.

Further evidence of this Agent's bad faith and unreliability is his outright deception to the Court in later testimony at the Detention Hearing. Regarding Defendant's relationship with the United States Customs Agency, Agent Keller begins his testimony to the Court with the assurance that his testimony regarding same will be dependable because "I have been in--I have been in touch with the U.S. Customs as early as yesterday." (Ibid, page 28, line 22)

What then follows can only be characterized as bizarre and manifest evidence of Agent Keller's unreliability as a witness whose testimony may be relied upon to deprive a citizen of their basic right to freedom. For three full pages this Agent gives testimony in such a way that it sounds like he is answering from the personal knowledge gained from having "been in touch with the U.S. Customs. . ." (Ibid)

Then, a bombshell! Special Agent Keller admits under cross-examination that he has never called Customs and that the information he has about Defendant's relationship with Customs is from Assistant United States District Attorney Bob Rawlins. He had, in fact, practiced a further subterfuge on the Court, and to Defendant's further ruination he continues the tact of trying to cover his lack of knowledge regarding these matters for the following 8 pages. Reading the cross- examination of Agent Keller in total, his credibility as a reliable source of information, on which to base a decision as to whether the Defendant qualifies for a bond, is totally nonexistent. He pretends to the Court to have sources to substantiate his testimony, but upon cross-examination, it is clear that he may be biased, but he is also woefully uninformed.

Uninformed, misinformed, or, again, ingenious, Agent Keller misspeaks when he states that he first became aware of the Defendant when "he came to our office and talked to a Special Agent Kinkaid about this same Customs inquiry." (Ibid, page 33, line 8) This event never occurred!

Further, in what is perhaps the most lucid and dependable testimony enticed from Special Agent Keller throughout the entire Hearing, he is asked whether Mr. Hayes "is a risk to the community" or whether he "threatens anybody or anything at all in any of the articles you have introduced?" (Ibid, page 41, line 3). Agent Keller replies, "Other than what it had on the internet . . . No sir . . ." (Ibid, lines 6 & 8)

Finally, "Is there anything in those articles in that magazine that says he is a risk of flight?" "No, sir," is the reply. And it is the information in those very articles themselves that the Court refers to in explaining the basis for its Findings of Fact which resulted in the detention of Defendant. (Memorandum Opinion and Order, page 4)

Therefore, if the only reliable evidence gleaned by Agent Keller's investigation of Mr. Hayes' propensity to flee or to represent a risk to another person to the community comes from a magazine article which Defendant has previously characterized as very credible, and that same Agent admits under oath that the article contains no evidence that Defendant will flee or offer risk to another, then "Where's the Beef?"

The nature of the charge itself, while serious, cannot be sufficient to deny Defendant to a fair and reasonable bond, so the government has failed to meet its burden of proving that the Defendant should be detained pending trial.

WHEREFORE, the Defendant prays this Honorable reconsider its Order detaining Defendant without bond pending trial and either give him a fair and reasonable bond or schedule another Bond Hearing to make the government give some credible evidence to substantiate his detention, all to correct his current unconstitutional situation which, because he remains incarcerated, is further depriving him of his opportunity and right to participate in the construction of his natural and true defenses to the charge against him.

Respectfully submitted,

GATEWOOD GALBRAITH
P.O. Box 1438
Lexington, Kentucky 40591
(606) 277-1531

[3] MOTION FOR BILL OF PARTICULARS

Comes the Defendant, by and through counsel, and moves this Honorable Court for an Order directing the United States to immediately answer the following Bill of Particulars.

As grounds for this Motion, counself states that said information is necessary for Defendant to prepare his defense to the charge against him and the withholding of said information would Unconstitutionally deny him the right to a fair trial.

1. How did the FBI or any other government agency first hear of the information which is the basis of the charge against Defendant herein?

2. How did the government agent from Alabama get involved? Who made the decision to call Defendant from there?

3. Does the United States have any witness who has heard Defendant threaten his son or discuss having his son murdered? If so, who is this witness and what does he/she say prompted him/her to contact the FBI or other government agency?

Respectfully Submitted,

GATEWOOD GALBRAITH
P.O. Box 1438
Lexington, Kentucky 40591
(606) 277-1531

Posted here December 30, 1996
Web Page: http://www.aci.net/kalliste/