Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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LAW OFFICE OF NEIL C. LABARGE
NEIL C. LABARGE State Bar No. 13920 11 W . Jefferson St., #2 Phoenix, AZ 85003 (602) 252-4090 FAX (602) 252-2111 Attorney for Defendant Corralejo

IN THE UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ________________________________ NEIL C. LABARGE LAW OFFICE OF NEIL C. LABARGE Defendant. Comes now defendant, through attorney Neil C. LaBarge, and respectfully submits the attached objections to the draft Pre-Sentence Report dated August 1, 2005. Respectfully submitted this date: September 23, 2005. v. RICARDO CORRALEJO, U.S.A., Plaintiff, DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT No. CR04-1090-1-PHX-JAT

Case 2:04-cr-01090-JAT

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Filed 09/23/2005

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OBJECTIONS:

It is anticipated that the following objections will not affect the sentencing calculation under the guidelines: 1) Page 2 - ALIASES - Mr. Corralejo has never used either of the two aliases CORRALEGO or CORRELJO. They appear to be misspelling of his true name. He does use the name "Ricky." 2) Paragraph 24 - outstanding warrant - This matter has since been addressed by Mr. Corralejo, and the warrant has been quashed.

It is anticipated that the following objections will affect the sentencing calculation under the guidelines: 3) Paragraph 5 - Mr. Corralejo denies having gone into Mexico to speak with the aliens. Mr. Corralejo denies having been the driver in this case, and has always maintained that another person, Ernest Lucio, was the driver. He denies having told the aliens to get in and hide from view, and alleges that Mr. Lucio did so. 4) Paragraph 7 - Defendant again denies that he was the driver, and notes that in the two material witness depositions done in this case, only one of the aliens claimed that Mr. Corralejo was driving. The other could not say who was driving. The PSR also states that agent Hartsuicker reports that Casa Grande officers identified Mr. Corralejo as driving the vehicle. However, nowhere in either of the two Casa Grande officers' reports does it say that they were able to do this. To the contrary, both officers reports indicate that they arrived after the vehicle had stopped and the occupants had exited. This would make sense as they were the two officers who were standing outside of their parked patrol cars who deployed the "stop sticks" to deflate the truck's tires, and therefore would have had to re-enter their vehicles and begin driving from a stopped position to join the pursuit. It should be noted that agent Hartsuicker is the case agent and was not on the scene at the time of the offense. His report was written based on a review of other reports. -2Filed 09/23/2005

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Therefore, the only law enforcement person who appears to have actually been at the scene when the truck stopped was one Tohono O'odham tribal officer, officer Perez. Officer Perez notes in his report that it was approximately midnight and that there was no moon out at the time. 5) Paragraph 9 - Obstruction - Defendant denies driving the vehicle. 6) Paragraph 14 - 6 level increase for risk of death or injury - Defendant objects to this as he denies being the driver. Therefore, he was not able to control the vehicle nor stop it.

The issue of the driver's identity affects the last four objections above. In addition to the argument offered in each paragraph above, defendant submits the following in support of all objections relating to the driver issue: A) Defendant has always maintained from the date of arrest that he was not the driver. B) Defendant testified at the detention hearing in this case, and swore under oath again that he was not the driver. C) During plea negotiations, the government and defense reached an agreement that Mr. Corralejo would submit to a polygraph test on this issue, and that the results would be admissible at trial, regardless of whether he passed or failed. It is important to note that this was a defense proposal, that Mr. Corralejo agreed to this before taking the test, and that he did not take any other polygraph test before agreeing to propose it to the government. It is also important to note that the government and defense agreed to the polygrapher, and that it was not at the defense's sole choosing. Attached are the test results including the relevant questions asked. Tom Ezell is an experienced, ex-law enforcement polygrapher, who has been recognized as an expert and testified in courts throughout Arizona. Also attached is his resume.

Case 2:04-cr-01090-JAT

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-3Filed 09/23/2005

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Respectfully submitted this date: September 23, 2005.

LAW OFFICE OF NEIL C. LABARGE

________________________________ NEIL C. LABARGE

Original filed with the following via ECF this date: September 23, 2005. Clerk of the Court 401 W. Washington St. Phoenix, AZ 85003 Copies mailed and/or e-mailed to the following on this date: September 23, 2005.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4Filed 09/23/2005 Camille Bibles, AUSA 123 N. San Fransisco St. #204 Flagstaff, AZ 86001 Mark Nebgen, USPO U.S. Probation Office 401 W. Washington St. Phoenix, AZ 85003 Hon. James A. Teilborg [email protected]

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