Prosecutors want convicted Utah pill doctor in prison by April

Federal prosecutors want a Brigham City doctor convicted of illegally distributing painkillers to report to prison on April 2.

In a motion filed Thursday, Assistant U.S. Attorney Michael Kennedy requested that U.S. District Judge Dee Benson order Dewey C. MacKay to self-surrender to prison by the April date, following a Wednesday ruling from the 10th Circuit Court of Appeals in Denver, which denied a request from MacKay asking to stay out of prison while he appeals his case.

The appeals court ruled that MacKay, 64, failed to show "exceptional reasons" that he should be allowed to stay out of prison pending his appeals. Judge Dee Benson last month denied a request to allow MacKay to stay out of prison while his attorneys appeal his guilty verdict and 20-year prison sentence, but he did grant a defense request to allow MacKay to remain free while appealing Benson's ruling regarding the overall appeal.

MacKay's attorney, Peter Stirba, then filed an appeal to the 10th Circuit Court.

MacKay initially was supposed to report to prison Feb. 1.

In denying the first request from defense attorneys to allow MacKay to stay out of prison while he appeals his overall case, Benson said the defense had not adequately shown they can argue a substantial issue of law or fact on appeal — a requirement for allowing MacKay to stay out of prison during the appeal.

The judge rejected the contention that MacKay's failing health could be considered an exception.

MacKay's primary care physician, John Markeson, had testified at the hearing that MacKay's stress level has increased his likelihood to suffer a heart attack or stroke. He said MacKay, who had heart bypass surgery in 2001 and an angioplasty last year, takes about $1,000 of medications monthly, including insulin and drugs to control his blood pressure and high cholesterol.

Assistant U.S. Attorney Michael Kennedy argued that patients with more severe medical needs than MacKay report to prison all the time and that the law states MacKay must be detained pending appeal.

Stirba argued the appellate court could overturn the verdict on grounds of insufficient evidence at trial, and that the case against MacKay should have been handled civilly. Benson then told MacKay he believes the jury's verdict was based on sufficient evidence presented at trial, but again expressed sympathy to MacKay and reiterated that the 20-year mandatory sentence handed down was "too long."

Benson said last month that he wished the "humanitarian" side of him could have issued a different ruling to keep MacKay out of prison throughout the entire appeal. Granting the defense's request to keep MacKay out of prison while they appeal the ruling, however, was the best Benson said he could do.

"It's very easy to get almost teary-eyed over the health issue alone," Benson said. "This is so hard for people who love and admire and respect this man, which is many."

Some of MacKay's victims petitioned Benson in the days leading up to last month's hearing, asking the judge to order MacKay to prison as soon as possible.

mrogers@sltrib.com

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The case

Dewey C. MacKay was indicted in August 2010 on charges related to prescribing more than 1.9 million hydrocodone pills and nearly 1.6 million oxycodone pills between June 1, 2005, and Oct. 30, 2009. On the evening before the start of jury selection in MacKay's trial in August, prosecutors filed a motion to dismiss a third of MacKay's charges, saying the case could be tried more effectively without the additional charges.

At trial, prosecutors argued that Brigham City physician MacKay did not conduct physical exams or question patients to determine whether they were abusing or selling the drugs, despite cases in which a patient's family member called to report prescription abuse.

MacKay was accused of pushing 80 to 120 patients through his office in an eight-hour workday, spending just minutes with each person. The Drug Enforcement Administration revoked MacKay's authorization to prescribe controlled substances after completing an investigation that led to his indictment.

Among the counts MacKay was convicted of was causing the death of 55-year-old David Leslie Wirick in 2006. Wirick, a rocket scientist at Alliant Techsystems, died of a drug overdose during a three-day binge after filling prescriptions from MacKay.

Before MacKay's sentencing, U.S. District Court Judge Dee Benson had considered dismissing the case.

Defense attorney Peter Stirba has claimed Assistant U.S. Attorney Michael Kennedy lied about MacKay during closing arguments on Aug. 17.

The U.S. Attorney's Office responded to the motion by defending the truthfulness of the prosecution's closing arguments and by saying the defense had mischaracterized a number of statements made in court.

Benson denied Stirba's motion for dismissal, and sentencing proceeded.

In a flurry of last-minute filings, MacKay's attorneys had asked Benson to allow MacKay to stay out of prison while his attorneys appeal his case, citing his military service, volunteerism in the community and low flight risk due to medical conditions, including diabetes. But prosecutors argued MacKay belongs in prison.

Benson did not grant that request, but allowed MacKay to stay out of prison while his attorneys appealed his denial of the request.

MacKay was supposed to self-report to prison on Feb. 1.