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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 America 185 South State Street, Suite 300 • Salt Lake City, Utah 84111 Telephone: (801) 524-5682 • Facsimile: (801) 524-6924 e-mail: michael.kennedy@usdoj.gov

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, vs. DEWEY C. MacKAY, III, Defendant.

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1:10 CR 94 DB GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR RELEASE PENDING APPEAL

Judge Dee Benson Magistrate Judge Paul M. Warner

The United States of America, by and through the undersigned Assistant United States Attorney, hereby submits its Response in Opposition to Defendant’s Motion For Release Pending Appeal. In support of its position, the United States

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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: the defendant must have been found guilty, he must have been sentenced to incarceration, and he must have filed an appeal. In this case, as of the time of the filing of defendant’s motion, only the first of these has occurred. The defendant has not yet been sentenced (although this is anticipated), and he has not yet filed his appeal. Consideration of his motion for release pending appeal should be deferred until such time as it is properly before the Court. B. The Government has not been provided time to respond to defendant’s motion. Pursuant to the Rules of Criminal Procedure, the United States is entitled to 14 days to respond to the defendant’s motion. The motion was filed on Saturday December 17, 2011, well after the end of business hours on the last business day before sentencing. The government was provided with no opportunity to respond. The government disagrees that the defendant qualifies for release pending
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appeal. 18 U.S.C. § 3143(b)(2), governing release pending appeal, provides that the 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 in 18 U.S.C. § 3142(f)(1)(B) are any crimes for which the maximum sentence is life imprisonment or death, and crimes described in 18 U.S.C. § 3142(f)(1)(C) are any offenses 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) meets the criteria of both these categories, and all of the other counts of conviction except Counts 15, 16, and 17, meet the criteria of 18 U.S.C. § 3142(f)(1)(C) in that they are offenses under the Controlled Substances Act for which a maximum term of imprisonment of ten years or more is prescribed. Thus, pursuant to statute, the presumption is that defendant may not be released pending appeal. The government does not concede that the defendant meets the criteria in 18 U.S.C. §§ 3143(b)(1) and 3145(c), which could qualify him 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’s motion is properly filed and the government has had an opportunity to fully
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respond. C. Conclusion: The government does not oppose allowing the defendant a reasonable period to self-report, pending designation by the Bureau of Prisons of an appropriate facility at which the defendant will serve his sentence. The government respectfully requests that Court order the defendant to report for service of his sentence on a reasonable date certain after sentencing, and the defendant’s motion for release pending appeal be denied without prejudice as premature, and that a substantive ruling on the motion be deferred until such time as the motion is properly before the Court and the government has been provided an adequate opportunity to respond to the substance defendant’s arguments.

DATED:

December 18, 2011.

DAVID B. BARLOW United States Attorney

/s/

Michael Kennedy

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MICHAEL P. KENNEDY Assistant United States Attorney

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am an employee of the United States Attorney’s Office, and that a copy of the foregoing Notice of Government’s Position on Release Pending Appeal was caused to be served on all persons named below, either by electronic filing notice, U.S. Mail (postage prepaid), or hand delivery, on December 18, 2011.

Peter Stirba Nathan Crane Blake Hamilton Kathleen Abke Attorneys for Defendant Dewey C. MacKay, III 215 South State Street, Ste. 750 Salt Lake City, UT 84111

/s/

Michael Kennedy

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