Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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LAW OFFICE OF GREGORY T. PARZYCH Gregory T. Parzych, Bar ID. 014588 1811 South Alma School Road, Suite 230 Mesa, Arizona 85210 Telephone (480) 831-0200 Attorney for the Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA Plaintiff, vs. KEITH D. PRIEST Defendant. ) ) ) ) ) ) ) ) ) ) CR-03-344-PHX-MHM DEFENDANT PRIEST'S MOTION FOR RELEASE PENDING APPEAL

Defendant, through counsel, hereby moves this Court for an Order, pursuant to Rule 46, Federal Rules of Criminal Procedure, for release pending appeal. This motion is further supported by the attached Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES At the present time the defendant, Keith D. Priest, is pending sentencing on two counts of failure to file an income tax return, each a misdemeanor offense punishable by up to 12 months imprisonment. Recently, a sentencing hearing was held where this Court ruled that it could consider Mr. Priest's acquitted conduct (namely, his acquittal on the conspiracy charge of defrauding the government) for purposes of determining the Advisory Guideline sentencing range. Of course, the Advisory Guideline sentencing range is one of the factors this Court intends to consider in imposing sentence in Mr. Priest's case. Counsel for Mr. Priest has objected to this Court considering acquitted conduct in determining sentence.

Case 2:03-cr-00344-MHM

Document 877

Filed 06/26/2006

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The Presentence Report has calculated an Advisory Guideline sentencing range taking into account-acquitted conduct. The Advisory Guideline range, taking into account acquitted conduct, results in a sentence of 24 months imprisonment. LEGAL ANALYSIS A defendant who stands convicted of a crime and who is sentenced to a term of imprisonment must demonstrate that he is not likely to flee or pose a danger to another person or the community. The burden is on the defendant to demonstrate by clear and convincing evidence that he or she meets both tests set forth above, if they are to be free on bail pending appeal. 18 U.S.C. Section 1343(b)(1)(A). Second, a defendant must also show that appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a prison term or a reduced sentence that would be less than the total time the defendant has already served, plus the expected duration of the appellate process. 18 U.S.C. Sec. 1343(b)(1)(B). The issue of what is a substantial question is varied, and depends on the circuit court's particular elaboration of the test it employs. In United States v. Handy, 761 F.2d 1279 (9th Cir. 1983), the Ninth Circuit defined its definition of one that is "fairly debatable" or an issue that could be decided either way. Handy at 1283. The defendant need not convince the district court judge that its own rulings would result in reversal. The question presented may be substantial even if the judge hearing the application for bail would affirm the ruling on appeal. A substantial question is one that is not frivolous and that poses issues "debatable among jurists of reason." Handy at 1285 In the instant case, the record establishes that Mr. Priest is not a flight risk, nor is he a danger to the community. He has appeared at all required court hearings. He has complied with all terms of his release. He has fought the charges against him vigorously and intends to vigorously pursue his appeal. He believes that he will be vindicated on appeal, and has no intentions of delaying his appeal.

Case 2:03-cr-00344-MHM

Document 877

-2Filed 06/26/2006

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Although counsel, in this pleading, points out one issue where a substantial question of law or fact exists - consideration of acquitted conduct - counsel is by no means stating that there are no other issues, in Mr. Priest's case, that may raise a "substantial question" of law or fact. The use of Acquitted Conduct. This Court's decision to permit the use of "acquitted conduct" in determining an Advisory Guideline range raises a "substantial question" of law permitting Mr. Priest's release pending appeal. Mr. Priest's case is unique in cases permitting the use of acquitted conduct. It is unique because in order to hold that acquitted conduct could be considered, this Court had to substitute its own conclusions as to Mr. Priest's state of mind for that of the jury. Counsel is unaware of any case where a district court judge substituted its beliefs on a specifically required "mens rea" where a jury obviously failed to find the required "mens rea" in reaching its verdict. Mr. Priest never denied engaging in certain conduct, conduct which the jury would have attached criminal liability to if it believed that Mr. Priest knew that he was doing something illegal. In the instant case, the jury failed to find the required "mens rea", that being that Mr. Priest knew that he was engaging in illegal conduct. That is why the jury acquitted Mr. Priest of conspiracy and of 2 counts of failure to file an income tax return. This Court's conduct, in substituting its own "mens rea" conclusions for those of the jury, raises a substantial question of law, one clearly "debatable among jurists of reason." In permitting the use of acquitted conduct, Mr. Priest stands to be sentenced to a sentence much longer than the one he would have received absent such consideration. Mr. Priest's case, therefore, presents a substantial question of law compelling his release pending appellate review.

CONCLUSION
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For the reasons stated, counsel for Mr. Priest respectfully requests, pursuant to Rule 46, Federal Rules of Criminal Procedure, that this Court enter an Order permitting Mr. Priest to remain released pending appeal. RESPECTFULLY SUBMITTED this 26th day of June, 2006.

By /S/ Gregory T. Parzych Gregory T. Parzych

Original of the foregoing Pleading mailed/hand-delivered this 2 day of June, 2006, to: Clerk of Court Sandra Day O'Connor U.S. Courthouse Suite 130 401 West Washington Street - SPC 1 85003-2118 Mark Odulio and Larry Wszalck Department of Justice Tax Division Assistant United States Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Rena P. Glitsos 45 West Jefferson, Luhrs Tower - Suite 512 Phoenix, AZ 85003-2317 Stephen Kunkle 111 West Monroe, Suite 1212 Phoenix, Arizona 85003 Gregory A. Robinson 6040 North 7th Street, Suite 300 Phoenix, Arizona 85014 Alex Gonzalez 1811 South Alma School Road, Suite 230 Mesa, Arizona 85210
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