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

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PAUL K. CHARLTON United States Attorney District of Arizona LARRY WSZALEK State of Wisconsin Bar No. 1003722 MARK T. ODULIO District of Maryland Bar No. 26348 Trial Attorneys U.S. Department of Justice Tax Division Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7661

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Keith D. Priest Defendant. GOVERNMENT'S MOTION TO DECLARE BAIL BOND FORFEITED CR03-344-PHX-MHM

The United States of America by its attorneys Paul K. Charlton, United States

20 Attorney for the District of Arizona, and Larry J. Wszalek, and Mark T. Odulio, Trial 21 Attorneys with the United States Department of Justice, Tax Division hereby moves the 22 Court to declare forfeited Defendant Keith D. Priest's $30,000 bail bond, pursuant to Federal 23 24 Rule of Criminal Procedure 46(f)(1) and 18 U.S.C. §3146(d). In support of this motion, the 25 Government states as follows: 26 27 28
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1.

On April 4, 2003, Defendant Keith D. Priest was indicted on a felony

tax count of conspiracy to defraud the United States in violation of 18 U.S.C. §371. (Dkt. 1) 2. On April 14, 2003, Defendant Keith D. Priest appeared before

5 Magistrate Judge Morton Sitver for his Rule 5 hearing, at which time, Magistrate Judge 6 7 8 3. In the Order Setting Conditions of Release, which the defendant 9 acknowledged by signing on page 2, the Court stated as followed: "IT IS ORDERED that the 10 release of the defendant is subject to the following conditions and shall: appear at all 11 12 13 commit any federal, state, or local crime. (Dkt. 67) 14 15 16 17 18 and willful failure to file income tax returns (Counts 24-27). (Dkt. 180) 5. On January 28, 2004, Defendant Keith D. Priest appeared before 4. On January 15, 2004, the Grand Jury returned a Superseding Indictment proceedings as required and to surrender for service of any sentence imposed" and "not Sitver set the conditions of the defendant's release. (Dkt. 67)

against the defendant charging him with conspiracy to defraud the United States (Count 1)

19 Magistrate Judge David K. Duncan for his Rule 5 hearing, at which time, Magistrate Judge 20 21 22 14, 2003. (Dkt. 204) 23 24 25 26 Indictment against the defendant alleging the same charges set forth in the Superseding 6. On January 11, 2005, the Grand Jury returned a Second Superseding Duncan imposed the same conditions of release previously set by Magistrate Sitver on April

27 Indictment and adding sentencing allegations. (Dkt. 346) 28
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7.

On January 26, 2005, Defendant Keith D. Priest appeared before

Magistrate Judge Virginia A. Mathis for his Rule 5 hearing, at which time, Magistrate Judge Mathis imposed the same conditions of release previously set by Magistrate Sitver on April

5 14, 2003. (Dkt. 364) 6 7 8 case, the Court sentenced Defendant Keith D. Priest to 18 months imprisonment and ordered 9 Defendant Priest to self-surrender to the United States Marshal's Service on Monday, August 10 28, 2006. The Court issued its order in open court and in the presence of Defendant Priest: 11 12 Mr. Parzych: 13 14 Court: 15 16 17 Courtroom Deputy: Monday, August 28th, by twelve o'clock. Monday, August the 28th, by 12:00 noon. 12:00, noon? You need to report to the United States Marshal's Office. (Dkt. 964, pgs. 27-28) 9. Defendant Keith D. Priest did not, and has not, self-surrendered to the 18 Court: 19 Mr. Parzych: 20 21 22 23 24 United States Marshal's Service as directed by the Court. Nor has Defendant Keith D. Priest Court: Judge, we would just ask that Mr. Priest be allowed to self-surrender in 90 days and we would ask that the bond be exonerated. Well, the bond, I think, is automatically exonerated when he selfsurrenders. I think I'll set the self-surrender date out to 60 days. And so that will be 8. On June 28, 2006, following the trial and conviction of defendant in this

25 self-surrendered at the Federal Correctional Institution (FCI) - La Tuna in Anthony, Texas, 26 27 28
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1 on or after August 28, 2006, the institution to which he has been designated to serve his 18 2 3 4 10. On August 31, 2006, this Court, on petition of the Pretrial Services month term of imprisonment.

5 Office, issued an arrest warrant for Defendant Keith D. Priest for failing to surrender for 6 7 8 11. Federal Rule of Criminal Procedure 46(e)(1) provides: "If there is a 9 breach of condition of a bond, the district court shall declare a forfeiture of the bail." A bail 10 bond may be forfeited not only for the defendant's failure to appear, but also for other 11 12 13 United States v. Vaccaro, 51 F.3d 189, 191-93 (9th Cir. 1995)(court forfeited bond because 14 defendant committed crime while on release); United States v. Stanley, 601 F.2d 380, 382 15 16 17 12. Given that defendant both violated a condition of his release and 18 committed a federal crime by failing to surrender for service of a sentence, the Government 19 contends that the defendant breached the conditions of his bond and must now forfeit the 20 21 22 23 24 25 26 27 28
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sentence as ordered by the Court.

violations of bond conditions, including the defendant's commission of a crime. See, e.g.,

(9th Cir. 1979)(defendant breached travel restrictions).

$30,000 bail. The Court does not need to hold a hearing on this motion, as it is a summary

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1 proceeding. See, e.g., United States v. Dudley, 62 F.3d 1275, 1277 (10th Cir. 1995); United 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
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States v. Dunn, 781 F.2d 447, 449-50 (5th Cir. 1986). Respectfully submitted this 1st day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Larry J. Wszalek LARRY J. WSZALEK MARK T. ODULIO Trial Attorneys
I hereby certify that on September 1, 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::

Philip Hantel 710 West Roosevelt Phoenix, Arizona 85017 Counsel for Keith D. Priest

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