Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona MICHELLE HAMILTON-BURNS Assistant U.S. Attorney Arizona State Bar No. 010269 United States Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-0974-PHX-DGC Plaintiff, v. Neil Rusty Bond, Defendant. The United States of America, by and through its attorney, the United States Attorney for the District of Arizona, responds herein to defendant's Motion for Release Pending Appeal and Request for a Status Conference and requests that this Court deny the requested relief, based upon 18 U.S.C. §3143(b) and the following Memorandum of Points and Authorities. It is expected that excludable delay under Title 18, United States Code, Section 3161(h)(1)(F) will occur as a result of this motion or an order based thereon. Respectfully submitted this 29th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S Michelle Hamilton-Burns MICHELLE HAMILTON-BURNS Assistant U.S. Attorney RESPONSE TO DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL

Case 2:03-cr-00974-DGC

Document 200

Filed 03/29/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MEMORANDUM OF POINTS AND AUTHORITIES Defendant requests that this Court enter an order releasing him pending appeal pursuant to 18 U.S.C. §3143(b). Defendant correctly sets forth the text of the statute and in general the standards to be applied. He fails completely however, to present any substance to his claim that there exists a "substantial question of law or fact likely to result in reversal, an order for a new trial or a reduced sentence." His bare assertion that counsel "could easily spot meritorious issues," and that they relate to the fact that defendant's request for an expert was denied, that defendant was appointed at least three different defense attorneys on separate occasions prior to the beginning of his trial, that the trial judge recused herself, and that an Order to Show Case(sic) Hearing was not held, is not sufficient to support a finding of a substantial question of law or fact. Defendant has the burden of establishing that a substantial question exists that would likely result in reversal. United States v. Montoya, 908 F.2d 450, 451 (9 th Cir. 1990) In Montoya, the court ruled that a "cursory motion presented by counsel" was inadequate to support a finding that defendant had substantial questions to present on appeal. Id The legislative history of the statute states that its purpose "is to require an affirmative finding that the chance for reversal is substantial." United States v. Handy, 761 F.2d 1279, 1280 (9 th Cir. 1985) (citations omitted) A substantial question is one that is fairly debatable. Id. at 1283. This court presided over the post-trial motions filed by defendant's trial counsel, and may take notice of the number filed and the vigorousness with which numerous trial issues were advanced. 1/ The court issued lengthy orders, addressing all of the issues raised by defendant. (docket 139, 183) The defendant's request for release pending appeal has no merit and should be denied. As such, defendant's request for status conference should be denied as well.

Memorandum re: Release of Defendant Pending Sentencing (docket 123); Motion for New Trial (docket 135); Objection to Presentence Report (docket 154); Motion for Reconsideration (docket 157); Memorandum re: New Trial (docket 166); Reply to Response (docket 173)

1/

Case 2:03-cr-00974-DGC

Document 200

Filed 03/29/2006

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted this 29th day of March, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona /S Michelle Hamilton-Burns MICHELLE HAMILTON-BURNS Assistant U.S. Attorney

Case 2:03-cr-00974-DGC

Document 200

Filed 03/29/2006

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /S Michelle Hamilton-Burns I hereby certify that on this 29 th day of March, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Anders V. Rosenquist, Jr. [email protected] CERTIFICATE OF SERVICE

Case 2:03-cr-00974-DGC

Document 200

Filed 03/29/2006

Page 4 of 4