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Gov't reply to Dr. MacKay motion

Gov't reply to Dr. MacKay motion

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Published by Ben Winslow

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Published by: Ben Winslow on Dec 19, 2011
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DAVID B. BARLOW, United States Attorney (#13117)MICHAEL KENNEDY, Assistant United States Attorney (#8759)RICHARD W. DAYNES, Assistant United States Attorney (#5686)CARLOS ESQUEDA, Assistant United States Attorney (#5386)ROBERT C. LUNNEN, Assistant United States Attorney (#4620)Attorneys for the United States of America185 South State Street, Suite 300 • Salt Lake City, Utah 84111Telephone: (801) 524-5682 Facsimile: (801) 524-6924e-mail: michael.kennedy@usdoj.govIN THE UNITED STATES DISTRICT COURTDISTRICT OF UTAH, NORTHERN DIVISIONUNITED STATES OF AMERICA,Plaintiff,vs.DEWEY C. MacKAY, III,Defendant. ::::1:10 CR 94 DBGOVERNMENT’S RESPONSEIN OPPOSITION TODEFENDANT’S MOTION FOR RELEASE PENDING APPEALJudge Dee BensonMagistrate Judge Paul M. Warner The United States of America, by and through the undersigned AssistantUnited States Attorney, hereby submits its Response in Opposition to Defendant’sMotion For Release Pending Appeal. In support of its position, the United States
Case 1:10-cr-00094-DB -PMW Document 281 Filed 12/18/11 Page 1 of 5
avers that the defendant’s motion is premature, that the United States has not been provided adequate time to respond, and that in the defendant’s case, release pending appeal is not authorized.A.
 Defendant’s motion is premature
: For defendant’s motion for release pending appeal to be ripe for resolution, three events have to have occurred: thedefendant must have been found guilty, he must have been sentenced toincarceration, and he must have filed an appeal. In this case, as of the time of thefiling of defendant’s motion, only the first of these has occurred. The defendanthas not yet been sentenced (although this is anticipated), and he has not yet filedhis appeal. Consideration of his motion for release pending appeal should bedeferred until such time as it is properly before the Court.B.
The Government has not been provided time to respond to defendant’smotion
. Pursuant to the Rules of Criminal Procedure, the United States is entitledto 14 days to respond to the defendant’s motion. The motion was filed onSaturday December 17, 2011, well after the end of business hours on the last business day before sentencing. The government was provided with noopportunity to respond.The government disagrees that the defendant qualifies for release pending
Case 1:10-cr-00094-DB -PMW Document 281 Filed 12/18/11 Page 2 of 5
appeal. 18 U.S.C. § 3143(b)(2), governing release pending appeal, provides thatthe defendant “shall” be detained pending appeal if the defendant was convicted of a crime described in 18 U.S.C. § 3142(f)(1)(A), (B), or (C). Crimes described in18 U.S.C. § 3142(f)(1)(B) are any crimes for which the maximum sentence is lifeimprisonment or death, and crimes described in 18 U.S.C. § 3142(f)(1)(C) are anyoffenses under the Controlled Substances Act for which a maximum term of imprisonment of ten years or more is prescribed. In the defendant’s case, Count 1(distribution of a controlled substance the use of which resulted in death) meetsthe criteria of both these categories, and all of the other counts of convictionexcept Counts 15, 16, and 17, meet the criteria of 18 U.S.C. § 3142(f)(1)(C) in thatthey are offenses under the Controlled Substances Act for which a maximum termof imprisonment of ten years or more is prescribed.Thus, pursuant to statute, the presumption is that defendant may not bereleased pending appeal. The government does not concede that the defendantmeets the criteria in 18 U.S.C. §§ 3143(b)(1) and 3145(c), which could qualifyhim for release pending appeal, assuming one is taken. The government, however,is entitled to briefing and argument on the matter, at such time as the defendant’smotion is properly filed and the government has had an opportunity to fully
Case 1:10-cr-00094-DB -PMW Document 281 Filed 12/18/11 Page 3 of 5

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