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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION UNITED STATES OF AMERICA V. JOHN H.

WHITFIELD GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT WHITFIELD’S MOTION FOR RELEASE PENDING RESENTENCING The United States submits this Response in Opposition to Defendant John H. Whitfield’s Motion for Release Pending Resentencing. I. DEFENDANT HAS FAILED TO OVERCOME THE PRESUMPTION AGAINST RELEASE PENDING RESENTENCING UNDER THE BAIL REFORM ACT. Defendant Whitfield raises many of the same arguments asserted by his co-defendant, Walter W. “Wes” Teel. Whitfield argues that Section 3143(b), Title 18, United States Code, supports his motion for release pending resentencing, because he plans in the future to file a Petition for Writ of Certiorari with the U.S. Supreme Court. However, he has not filed a Petition for Writ of Certiorari, and he did not petition for rehearing in the Fifth Circuit. Accordingly, the Fifth Circuit issued its mandate, returning the matter to this Court for resentencing. Since defendant has no pending appeal, most of the §3143(b) factors governing release pending appeal do not apply to him. In addition, there is no basis for holding the resentencing in abeyance. The Fifth Circuit has issued the mandate as to Whitfield, and absent some additional factor not currently present, the resentencing should go forward in the usual timing and manner. In United States v. Olis, 450 F.3d 583, 587 (5th Cir. 2006), the Fifth Circuit held that “§3143(b)’s “pending appeal” language envisions a defendant . . . who has a pending appeal on CRIMINAL NO. 3:03cr120-HTW

a matter. . . .” The Fifth Circuit in Olis did find that the reduced-sentence provision of §3143(b)(1)(B) would apply to a defendant like Whitfield who is awaiting sentencing but whose convictions have been affirmed; but that it would not overcome the presumption against release pending resentencing1 if the defendant had not served all of his possible sentence. Id. at 586-87. Defendant Whitfield has not served all of his possible sentence, in fact, he has not served even half of his possible sentence. In explaining its reasoning, the Fifth Circuit quoted from a Seventh Circuit case: We cannot imagine any reason why a person whose convictions have been affirmed, and who faces [several] years in prison, should be released while the district judge decides whether (and if so, by how much) to increase the time remaining to be served. Breaking a sentence in the middle does not promote any end other than reducing the effective penalty by allowing a holiday, or worse, providing an opportunity to escape. Id. at 586-87, quoting United States v. Krilich, 178 F.3d 859, 861-62 (7th Cir. 1999). II. DEFENDANT HAS FAILED TO SHOW THAT RESENTENCING WILL RESULT IN A SENTENCE WITH SIGNIFICANTLY REDUCED IMPRISONMENT. Defendant Whitfield was convicted of six felony counts at trial. He was subsequently sentenced to 110 months on Count 11, and to 60 months on Counts 1, 4, 5, 6, and 7 all to run concurrently. Whitfield’s conviction on Count 11 was reversed by the Fifth Circuit, but the convictions on all other counts were affirmed. The statutory maximum penalty for the five affirmed felonies is forty (40) years2, meaning this Court could sentence defendant to 480 months on the affirmed convictions. The

United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987)(18 U.S.C. §3143 establishes a presumption against grant of such bail and the burden is on the defendant to prove all four factors by clear and convincing evidence).
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Counts 7 carries a statutory maximum penalty of up to 20 years. 2

Fifth Circuit, in affirming Whitfield’s conviction on five felony counts, suggested that this Court calculate the intended loss amount by offsetting the corrupt verdict rendered by Whitfield ($3.64 million) in the Marks case by “a reasonable estimate of whatever intrinsic value that case may have had if litigated before an impartial judge.” United States v. Whitfield, 590 F.3d 325, 368 (5th Cir. 2009). However, this Court will not need to reasonably estimate the value of the Marks case if tried before an impartial judge, because that case has in fact been tried, resulting in a judgment of $383,862. See Exhibit A, Satisfaction of Judgment and Judgment of Dismissal attached hereto. The loss amount for sentencing purposes will therefore be $3,256,138, which will add 18 levels to the offense level calculation based on the table in §2B1.1. As a result, the advisory sentencing guideline range will likely exceed 60 months per count. Even assuming the sentence imposed is only 60 months on all counts, Whitfield has not yet served even one-half of that length of time, and release on bail would be inappropriate. Krilich, 178 F.3d at 861-62. III. THE COURT SHOULD DENY BOND FOR THE SAME REASONS THAT BOND WAS PREVIOUSLY DENIED. Defendant Whitfield was allowed to remain out on bond following his conviction at trial and was allowed to self-report to prison. However, shortly before his report date, Whitfield filed a motion for release on bond pending appeal, which this Court denied on December 21, 2007, after analyzing the same factors in Whitfield’s present motion. Since that time, the Fifth Circuit has affirmed all of Whitfield’s convictions except one and has remanded the case for resentencing on the remaining counts. Whitfield previously sought bail pending appeal from the Fifth Circuit, which was denied on September 30, 2008, and again denied by the Fifth Circuit on a motion for rehearing. On January 7, 2009, Whitfield again sought release on bail pending

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appeal from this Court, and he even went as far as to seek a writ of mandamus from the Fifth Circuit on that motion. This Court denied the motion on July 13, 2009, in a five-page written opinion which again held that there was no substantial question of law or fact under the standard set forth in United States v. Valera-Elizondo, 761 F.2d 1020, 1023 (5th Cir. 1985). Whitfield also argues that he needs to be released pending appeal so that he can work on his appeal with his present counsel. This is not a proper legal basis for release pending resentencing. This argument especially rings hollow in light of the substantial pro se filings that Whitfield submitted before this Court and before the Fifth Circuit, including representing himself on appeal. Access to counsel due to geographical constraints is not one of the factors that the Court can or should consider in determining whether a defendant should be released on bail pending appeal. IV. CONCLUSION Defendant has not presented anything that would support his release on bail pending resentencing, and as with all of his previous attempts to obtain release, the present motion should be denied. Furthermore, there is no basis in law or in fact for treating Whitfield any differently than any other defendant who is awaiting resentencing by holding the hearing in abeyance. The mandate of the Fifth Circuit has issued as to defendant Whitfield, and this Court should proceed according to the normal course of business with regard to scheduling the sentencing hearing. Respectfully submitted, /s/ Dave Fulcher David H. Fulcher MS Bar#10179 Assistant U.S. Attorney 188 E. Capitol St. Suite 500 Jackson, Ms 39201

Ruth R. Morgan MS Bar# 1996 Assistant U.S. Attorney 1575 20th Avenue Gulfport, MS 39501 4

Ray Hulser Acting Chief, Public Integrity Section Peter Ainsworth Deputy Chief, Public Integrity Section Criminal Division U.S. Department of Justice 1400 New York Ave., NW Washington, D.C. 20530 CERTIFICATE OF SERVICE I hereby certify that on February 17, 2010, I electronically filed the foregoing Government’s Response in Opposition to Defendant’s Motion for Release Pending Resentencing with the Clerk of the Court using the ECF system, which sent notification of such filing to all counsel of record. s/ Dave Fulcher David H. Fulcher Assistant U.S. Attorney