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

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ALAN M. SIMPSON, P.C. Attorneys at Law Meridian Bank Tower 3550 North Central Avenue, Suite 1006 Phoenix, Arizona 85012 (602) 222-4878 Fax (602) 222-4879
State Bar No. 006203 e-mail: [email protected]

Attorneys for Karen Sue Blair, defendant. IN THE UNITED STATES DISTRICT COURT

8 DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 v. KAREN SUE BLAIR, Defendant. UNITED STATES OF AMERICA, Plaintiff, OBJECTION TO PRESENTENCE REPORT LOSS CALCULATION No. CR 04-1027-PHX-RGS

Karen Blair objects to the loss calculation offered at ¶ 28 of the presentence report (PSR). This request is supported by the accompanying memorandum of points and authorities and upon the evidence and arguments to be advanced at the hearing hereon. MEMORANDUM 1. The Investigation. a. Overview. For years postal clerks received postal goods (stamps, envelopes, etc) by having these items inventoried out to them. That inventory could then be reconciled with stock on hand and sales. At some point leading up to this investigation the Postal Service (Service) changed that age-old and trusted method and changed to a method called Segmented Inventory Accountability. Under this method, individual clerks had access to inventory without individual

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inventory accounting. That is, all clerks had access to a general pool of inventory. The instant investigation was spawned when the Yuma Main Post Office began to report losses in excess of what was considered normal or tolerable shrinkage. b. The Investigation of Postal Clerks. The Service commenced its investigation by utilizing a video camera to surreptitiously capture transactions at sales stations. The defense investigation, in the course of its investigation, contacted the Postal Workers Union Representative at the Main Station, Mr. Craig Clayborne. Mr. Clayborne advised that a number of the station clerks had learned, in advance, of the dates that surreptitious surveillance was to be effected. Mr. Clayborne further advised that Mrs. Blair was not the only clerk responsible for the losses experienced by his station. He commented that he had conferred with the lead postal investigator who acknowledged her belief that Mrs. Blair was not solely responsible for the station's losses. This information was provided to the government. Mr. Clayborne shall be present at Mrs. Blair's sentencing. c. The Investigation of Mrs. Blair. The PSR notes that from April 23, through July 2, 2004 the loss attributable to Mrs. Blair was $3897.12. PSR ¶ ¶ 12-13. The service surveilled Mrs. Blair on September 23 and 24, 2005 and the loss for each day was $72.52 and $71.83, for a total of $116.71. On September 24, 2004 investigators spoke with Mrs. Blair who admitted taking as much as $70.00 per day, two or three times per week, since the summer of 2002. PSR ¶ 17. 2. The Loss Calculation. The total loss at the Yuma Main Station was $21,577.49. According to the PSR, an

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ALAN M. SIMPSON, P.C.

inspector with the Service reported "the defendant is solely responsible for the loss as there is no evidence to substantiate any other employee was involved. PSR ¶ 21. This statement fails to
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take into account the information provided about the leaks in the investigation as learned by Union Representative Craig Clayborne. By defendant's statement, on the days she took funds, there may have been as much as $72.00 and the days were sporadic. 3. Legal Standard and Discussion. Under the advisory guidelines the sentencing court the court need only make a reasonable estimate of the loss. The estimate of the loss shall be based on available information See, 18 USCS Appx § 2B1.1. Application Note 3 (C). The facts sub judice establish:
a. b. c. d. e.

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ALAN M. SIMPSON, P.C.

The investigation of Mrs. Blair documented a loss of $3897.12. Mrs. Blair was but one of many clerks having un-documented access to inventory. Other clerks became aware in advance of the dates of surveillance. The Service cannot specifically identify the inventory received by Mrs. Blair. The government and defense have stipulated to a restitution amount of $5000.00.

Under these facts, the $5000.00 loss estimate is appropriate because it is reasonable and is based on facts bearing reasonable indicia of accuracy. Moreover, the loss of $21,577.49 is, simply, not readily provable. This fact supported the Rule 11 stipulation. 4. Conclusion. Mrs. Blair's objection should be sustained and the presentence report amended at ¶ ¶ 28, 32 and 34 so that the Total Offense Level under the advisory guidelines in a level 4.

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Respectfully submitted this 29th day of August 2005. /s/ _______________________ ALAN M. SIMPSON Counsel for Ms. Karen Sue Blair

Copies of the foregoing mailed/delivered this ___ day of August, 2005, to: Clerk of U.S. District Court (Original plus 1 copy) (hand-delivered) / Electronic Filing Michelle Hamilton-Burns Assistant United States Attorney Two Renaissance Building 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004

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ALAN M. SIMPSON, P.C.

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