Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cr-00128-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cr-000128-WYD United States of America, Plaintiff, v. 1. DANA WEST, Defendant.

RESPONSE TO DEFENDANT'S MOTION FOR FORTHWITH RELEASE

The United States of America, by its undersigned counsel, hereby responds to the defendant's motion for forthwith release. The government responds as follows: 1. The defendant requests that he "be released without any restrictions because

of the amount of time [he] has already served in this case." 2. The basis for the defendant's motion is that '[i]t is anticipated that

Defendant will enter into a plea agreement with the Government that calls for time served which would include any supervised release period." 3. However, to date the defendant has not entered into a plea agreement with

the government nor has he filed a Notice of Disposition with the Court.

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4.

The defendant is charged in a two-count indictment with Solicitation to

Commit Destruction by Explosion in violation of 18 U.S.C. § 373 and of Attempted Destruction by Explosion in violation of 18 U.S.C. § 844(i). The latter charge carries a statutory penalty of not less than five years imprisonment and not more than 20 years imprisonment. The estimated sentencing guideline range in the proposed plea agreement, where the defendant would plead guilty to the solicitation count (Count Two), is 27 - 33 months with acceptance of responsibility not 18 to 24 months as stated in the defendant's motion. Moreover, the proposed plea agreement does not include a recommendation by the government that the defendant's sentence not include a period of supervised release. Rather, the government is willing to recommend as part of the plea agreement that the additional excess time that the defendant has already served under pretrial supervision of the Court, either in pretrial detention or release on bond, be credited against any term or supervised release imposed as part of the sentence in this case. 5. Because the defendant is under indictment and has now been found

competent, the governing authority for the defendant's pretrial release is the Bail Reform Act, 18 U.S.C. § 3141, et. seq. Applying this statute in this case prior to the protracted proceedings involving the defendant's mental condition, Magistrate Judge Michael J. Watanabe entered an Order of Detention April 10, 2003. At the conclusion of the detention hearing, which was continued three times at the defendant's request, the court ordered the defendant detained without bond. The court concluded by clear and

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convincing evidence that no condition or combination of conditions of release will reasonably assure the appearance of the defendant and the safety of the community. 6. Since that time, the defendant has demonstrated a disregard for this Court's

orders and has repeatedly violated conditions of his release. 7. That said, the government recognizes that the defendant has spent

considerable time in pretrial custody in this case and further confirms that it has offered the defendant a disposition that would include a time-served sentence. However, until the defendant has been sentenced, the Bail Reform Act governs his release and the government believes that the record in this case supports his continued detention under 18 U.S.C. § 3142. 8. The government would not oppose release of the defendant on the condition

that he reside in a community corrections center.

Dated: January 22, 2008

Respectfully submitted, TROY A. EID United States Attorney s/ James O. Hearty By: James O. Hearty Assistant U.S. Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 (303) 454-0100 F: (303) 454-0403 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of January, 2008, I electronically filed the foregoing pleading with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Walter L. Gerash, Esq. [email protected]

Harvey A. Steinberg, Esq. [email protected]

s/ Victoria Soltis United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, CO 80202