The jury was mostly quiet during Day 2 of deliberations on Friday. They sent one note to Judge Thompson however that note was kept under seal. All the media could be told that was following the note Judge Thompson asked the jurors to continue with deliberations.
Friday afternoon (after the note was read in closed court) attorneys for the Government filed a "Notice of Intent" stating that McGregor was a flight risk and should a conviction come down, they would ask for McGregor's bond be revoked and the he be sent straight to jail.
Here's the motion:
NOTICE OF GOVERNMENT’S INTENT TO MOVE TO REVOKE DEFENDANT
MCGREGOR’S CONDITIONS OF RELEASE UPON ISSUANCE OF A GUILTY VERDICT
The United States, through undersigned counsel, hereby gives notice to the Court that, upon
further consideration, the United States intends to move to revoke Defendant McGregor’s conditions
of release upon the rendering of a guilty verdict against him.1
Under 18 U.S.C. § 3143(a)(1), the Court “shall order that a person who has been found guilty
of an offense and who is awaiting imposition or execution of sentence . . . be detained, unless the
judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if released under Section 3142(b) or (c).”
(emphasis added).
McGregor is a substantial flight risk. As the Court is aware, McGregor has substantial
financial resources as well as access to a private jet. Simply put, his current conditions of release would allow him to board a private jet and be flying toward a country with which the United States
has no extradition treaty long before the electronic monitoring to which he is subject would send any
alert to the probation office.
Moreover, as previously established through sworn testimony at McGregor’s October 4,
2010 bond hearing, McGregor previously has demonstrated a refusal to submit to the authorities in
connection with this case. When FBI agents arrived at McGregor’s residence to place McGregor
under arrest, they were falsely informed by McGregor’s private security guard that McGregor was
not home and was instead hunting in Macon County. 10/4/2010 Bond Hearing Tr. 21:14, 31:19-25.
When an FBI agent attempted to speak to the private security guard in the rear of the property, the
security guard hung up the phone and refused to speak to the FBI agent. Id. at 33:10-20. The FBI
agents continued their attempts to gain access to the property for one hour. Id. When they
eventually gained entrance into the residence, they were met by a private security major and
McGregor eventually surrendered. Id. While being placed under arrest and being transported to the
FBI, McGregor threatened the FBI agents multiple times, stating to them that they were making “the
biggest mistake” of their lives. 10/4/2010 Bond Hearing Tr. 20.
At the time of McGregor’s Bond Hearing the government sought only electronic monitoring,
due in part to the fact that prior to a guilty verdict, the law presumes that a defendant will be
released. See 18 U.S.C. 3142(b) (the judicial officer “shall” order pretrial release, unless
determining that release will not reasonably assure the appearance of the person or will endanger the
safety of any person). That presumption shifts after a jury returns a verdict of guilty, and requires
clear and convincing evidence that a defendant is not a risk of flight in order for a judicial officer to
order continued release.
Accordingly, the government gives notice of its intent to seek remand if the jury convicts
McGregor of any offense.
The motion itself is very peculiar. Shortly before the Prosecution rested its case the Defense asked if the same arrangement from the last trial would stand. That arrangement was the knowledge that should a "guilty" verdict be returned regarding one of the defendants, that defendant's current bond agreement would stand, allowing them to remain out of prison until a sentencing hearing. In a footnote, the Government basically says that wasn't actually the stance they took, they just made a mistake in agreeing with the Defense.
Here's the footnote:
1 When the United States previously represented to the Court that it would not seek to revoke the
defendant’s conditions of release, it was relying on the mistaken impression from defense counsel
that the government had taken that position at the first trial. However, the United States recently
confirmed that, in fact, the United States had not given any assurances to McGregor or any
defendant that it would not seek to revoke the conditions of release upon issuance of a guilty verdict.
What's even more interesting is that this order disappeared of the record this morning shortly after reporters found it. If it had been withdrawn, then there would have been a motion to withdraw on the record - that wasn't even there. The statement of intent just disappeared entirely. Thankfully, we still have a copy.
Max Reiss spoke with WSFA 12 News Legal Analyst and former Assistant US Attorney, Al Agricola, this morning about this statement and its subsequent disappearance from public record. Agricola believes that it's possible this was meant to remain under seal and it accidentally was posted publicly. He did say it could have been withdrawn, but agrees that a motion stating that it had been withdrawn should have been visible, and in this case, it was not.
When reporterd asked McGregor attorney Joe Espy for a comment regarding this statement, it was clear that Espy was angry. He told reporters that he would have a statement for them, but he had to speak to Judge Thompson first.
So...the saga continues.
Jurors deliberate today from 8:00 a.m. to 11:00 a.m. and Sunday from 1:00 p.m. to 5:00 p.m.
