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Doc 115; Opposition by USA as to Dzhokhar A. Tsarnaev MOTION Postpone Setting of Deadline for Defense Mitigation Submission

Doc 115; Opposition by USA as to Dzhokhar A. Tsarnaev MOTION Postpone Setting of Deadline for Defense Mitigation Submission

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Published by Josefina
Case 1:13-cr-10200-GAO


Doc 115; GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION TO SET
DATE FOR PRE-AUTHORIZATION PRESENTATION TO THE U.S. ATTORNEY 10212013
Case 1:13-cr-10200-GAO


Doc 115; GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION TO SET
DATE FOR PRE-AUTHORIZATION PRESENTATION TO THE U.S. ATTORNEY 10212013

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Published by: Josefina on Oct 16, 2013
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11/09/2013

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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTSUNITED STATES OF AMERICA ))v. ) Crim No.13-10200-GAO)DZHOKHAR A. TSARNAEV, )Defendant )GOVERNMENT
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S OPPOSITION TO DEFENDANT
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S MOTION TO SETDATE FOR PRE-AUTHORIZATION PRESENTATION TO THE U.S. ATTORNEY
  The United States of America, by and through itsundersigned counsel, respectfully opposes defendant
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s motion foran order requiring the United States Attorney to hear apresentation of mitigating factors fromhimon an unspecifieddate to be set in the future, which would effectively precludethe United States Attorney frommaking a death-penaltyauthorization recommendation to the Attorney General until afterthat date. As grounds for this opposition, the governmentstates the following:
BACKGROUND
  The United States Attorney
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s Manual (
A
USAM
@
) sets forthinternal Department of Justice policies and procedures,including procedures to be followed in potential death penaltycases. See USAM
''
9-10.010 to 9-10.190. It provides (amongother things) that the Attorney General himself will make thefinal decision about whether to seek the death penalty. USAM
'
 9-10.040. To facilitate that decision, the United States
Case 1:13-cr-10200-GAO Document 115 Filed 10/15/13 Page 1 of 13
 
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Attorney in the charging district must make a confidentialsubmission of relevant information to the Attorney General “asexpeditiously as possible.USAM
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9-10.040. Before doing so,the United States Attorney must give the defendant “a reasonableopportunity to present any facts, including any mitigatingfactors, for the consideration of the United States Attorney.USAM
'
9-10.080. In this case, the government has informeddefendant Dzhokhar Tsarnaev that he must make his presentationon or before October 24, 2013 (i.e. approximately six monthsafter the date of the crimes charged in the indictment), so thatthe United States Attorney can make her recommendation to theAttorney General on or about October 31, 2013.Defendant now asks the Court to order the United StatesAttorney to hear his presentation on a later, unspecified dateto be set some time in the future. In so doing, he necessarilyis also asking the Court to bar the United States Attorney fromcommunicating her death-penalty authorization recommendation tothe Attorney General until after that unspecified future date.He argues that the Court may do these things pursuant to its“inherent scheduling authority,” and that it should do thembecause the October 24, 2013 date does not give hima“reasonable opportunity” to present mitigating factors for theUnited States Attorney
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s consideration.
Case 1:13-cr-10200-GAO Document 115 Filed 10/15/13 Page 2 of 13
 
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Defendant
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s motion must be denied for two reasons. First,as defendant appears to acknowledge, USAMprocedures create nolegal rights and cannot be enforced by the courts. Because thisCourt has no authority to order the United States Attorney tohear a mitigation presentation in the first place, it has noauthority to order the United States Attorney to do so on aparticular date. Second, although the Court need not reach thisquestion, the October 24, 2013 date provides defendant with a“reasonable opportunity” to make a meaningful mitigationpresentation while vindicating the strong public andgovernmental interest in moving this case forward asexpeditiously as possible. Defendant
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s argument to the contraryis based on a fundamental misapprehension of the purpose of themitigation presentation.
 ARGUMENT
 A. Courts Have No Legal Authority to Set Dates ForInternal DOJ Procedures Such as the Pre-AuthorizationMeeting With Defense Counsel. The very first paragraph of the USAMexplains its limitedpurpose: The United States Attorneys' Manual isdesigned as a quick and ready reference forUnited States Attorneys, Assistant UnitedStates Attorneys, and Department attorneysresponsible for the prosecution oviolations of federal law. It containsgeneral policies and some procedures
Case 1:13-cr-10200-GAO Document 115 Filed 10/15/13 Page 3 of 13

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