Free Motion for Downward Departure Pursuant to 5K1.1 - District Court of Colorado - Colorado

Case 1:04-cr-00088-REB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00088-REB-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. JON CLARK, Defendant. MOTION FOR DOWNWARD DEPARTURE FOR SUBSTANTIAL ASSISTANCE The United States respectfully files this Motion for Downward Departure for Substantial Assistance pursuant to Section 5K1.1 of the United States Sentencing Guidelines. The parties

understand and agree that the federal sentencing guidelines are now advisory in nature and their application is not mandatory. In support of this Motion, the United States states the following: I. Procedural History On February 26, 2004, a one count information was filed in U.S. District Court fo the District of Colorado charging this defendant with False Books and Records and Aiding and Abetting, in violation of 15 U.S.C. §§ 78m(b)(2)(A) and (b)(5), 15 U.S.C. § 78ff, 17 C.F.R. §240.13b2-1, and 18 U.S.C. § 2. On April 29,

2004, the defendant entered a plea of guilty to the one count information before this Honorable Court. The plea agreement,

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which is a document of record in this case, contemplated that the United States would file a Motion for Downward Departure because of substantial assistance. This motion fulfills that obligation.

II.

Description of Clark's Cooperation Proffer Sessions Jon Clark, represented by counsel, meet with representatives

of the United States on six occasions to be debriefed and otherwise supply information. The first meeting took place on He provided

March 14, 2003, and the last on June 18, 2004.

extensive information regarding his own actions, the actions of other Vari-L employees, and the knowledge of others. session, he was cooperative and forthcoming. In each

He readily admitted

his own involvement in the ongoing accounting fraud and thoroughly described the participation of others. He identified

and described incidents and witnesses that were not previously known to the government. As a result, the government was able to He also provided

obtain the cooperation of other witnesses.

corroboration of some facts already related to the government by other witnesses. Because he was closely associated with highly

placed corporate officers, he was able to provide insight into their actions, much of which was based upon direct conversations, overhears of conversations and observations.

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III. Value of Clark's Cooperation Jon Clark's cooperation was both substantial and timely. He was one of the early individuals to make the decision to cooperate and his cooperation added to what was already known as well as providing additional information. He primarily provided

information on the actions and activities of then president, David Sherman. His cooperation was both important and

instrumental in obtaining an indictment of David Sherman. IV. Recommendation The plea agreement and the Presentence Investigation Report ("PSR") contemplate an adjusted offense level of 15 with a criminal history category of I. These computations merit a

guideline range of 18-24 months of incarceration. The plea agreement further contemplates a motion by the United States for Downward Departure pursuant to Section 5K1.1 of the federal sentencing guidelines. The plea agreement does not mention any

specific offense level agreed to by the parties. The United States respectfully requests that this Honorable Court grant the Motion for Downward Departure, find an adjusted offense level of 12 and a corresponding guideline range of 10-16 months. Because the sentencing guidelines are advisory and not mandatory, the sentencing factors in Title 18, United States Code, Section 3553(a)1-7 are also to be considered in fashioning an appropriate sentence. As will be fully provided to the court,

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some of the 3553 factors warrant a sentence under the advisory guideline calculation. Those factors deal with health issues for

the defendant (paragraph 63 of the pre-sentence report), health issues for his wife (paragraph 59 of the pre-sentence report), her dependency on him for mobility within the house and outside (paragraph 60 of the pre-sentence report), and his extraordinary repayment and disgorgement of money as a result of the offense (paragraph 73 of pre-sentence report). Most, if not all of the

above, is covered in a well prepared pre-sentence report which has been provided to all counsel and the Court. As a result, the United States feels that an adjusted sentencing range commensurate with an offense level of 10 with a criminal history category of I is appropriate in this case. would net a sentencing range in Zone B of 6-12 months. That

At that

level the Court can sentence to a period of probation with home detention. WHEREFORE, the United States respectfully requests that this Honorable Court grant this motion and sentence this defendant to a period of probation with home detention as a condition of probation. The United States leaves the period of both probation

and home detention to the discretion of the Court.

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Respectfully submitted, TROY A. EID United States Attorney

by: s/ Robert E. Mydans ROBERT E. MYDANS Assistant United States Attorney 1225 - 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0402 E-mail: [email protected] Attorney for the Government

by: s/ Patricia Davies PATRICIA DAVIES Assistant United States Attorney 1225 - 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0402 E-mail: [email protected] Attorney for the Government

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of November, 2006 I electronically filed the foregoing MOTION FOR DOWNWARD DEPARTURE FOR SUBSTANTIAL ASSISTANCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David W. Stark, Esq. [email protected] A copy of this Motion was e-mailed to: Grant Hanson U.S. Probation Department [email protected]

s/ Charlotte A. Seaton CHARLOTTE A. SEATON Legal Assistant to Robert E. Mydans U.S. Attorney's Office 1225 - 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0244 Fax: (303) 454-0402 E-mail: [email protected]