Free Motion to Sever Defendant - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DANIEL R. DRAKE Assistant U.S. Attorney Arizona State Bar No. 003781 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1018-PHX-JAT Plaintiff, v. Ed Preston, Defendant. The United States moves the court, pursuant to Rule 14(a), Fed. R. Crim. P., to sever the MOTION TO SEVER TRIAL OF ED PRESTON AND TO CONTINUE

15 trial of defendant Ed Preston from that of his co-defendants because Mr. Preston has accepted 16 the government's offer regarding disposition and is entering into a Pretrial Diversion Agreement. 17 Forcing a trial of Mr. Preston's case with that of his co-defendants would work a prejudice to 18 the government and to Mr. Preston, who might be unable to obtain the benefit of the resolution 19 offered by the government. Because additional time is required to complete the processing of 20 the Pretrial Diversion Agreement, the government requests that Mr. Preston's trial be set off 90 21 days. 22 Counsel undersigned has spoken with Joanne Landfair, the attorney for Mr. Preston, and 23 she does not oppose the granting of this motion. She specifically requests the 90 day 24 continuance based on her experience with other Diversion cases and the current Pretrial 25 caseload. This motion is further supported and explained by the attached memorandum. 26 27 //// 28 ////

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Excludable delay under 18 U.S.C. § 3161(h) may occur as a result of this motion or an

2 order based thereon. 3 4 5 6 7 8 9 10 11 FACTS The grand jury returned a five count indictment naming Pat Chee Miller, Bella BenMEMORANDUM Respectfully submitted this 1st day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

12 Henry, and Ed Preston as participants in a scheme to make false statements about a matter within 13 the jurisdiction of a federal agency, the Department of Health and Human Services. The 14 Department of Health and Human Services (HHS) provided a $5 Million grant to the Navajo 15 Nation specifically for construction of child care facilities on the reservation and those funds 16 were to be used by the Navajo Nation to fund construction of these facilities. The Navajo Nation 17 entered into contracts with Miller to use grant funds to produce and set up 17 modular units at 18 17 different locations on the Navajo Reservation where they were to be used for child care day 19 care centers, among other things. The indictment charged that defendants Pat Chee Miller, Bella 20 Ben-Henry, Fred Marianito, and Ed Preston falsely certified, or caused the false certification of 21 payment requests submitted to the Navajo Nation for payment under the above contracts. The 22 certifications were false because they indicated the work had been completed to various stages 23 when, in fact, the work had not progressed to that point. Indeed, according to the indictment, 24 Miller was paid for units that were not built and not delivered to their specified sites. Miller 25 received approximately $730,000 by virtue of false certifications and, as a result, was paid in full 26 for complete performance under the contracts when the work was not done. As of the date of 27 28
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1 final payment to Miller on September 30, 1999, only one of the 17 units had been delivered to 2 its designated site on the reservation, and Miller had been paid more than $2.4 Million. 3 Ed Preston, an architect, signed three false certifications on September 29, 1999,

4 according to the indictment. Mr. Preston had no involvement with these contracts, other than 5 signing the false certifications of completion. He was the lowest ranking of the three defendants 6 involved in this scheme and employed by the Navajo Nation. When interviewed by agents, Mr. 7 Preston said that he had no idea whether the work was done or not, and the only reason he signed 8 the false certification was that his supervisor, Fred Marianito, asked him to do so. Based on 9 these facts, and the apparent lack of financial reward to Mr. Preston, the government has offered 10 Mr. Preston Pretrial Diversion. 11 Mr. Preston wants to resolve this case through Pretrial Diversion, however, Pretrial

12 Services has not yet accepted the case for diversion although it is likely it will. Were Mr. 13 Preston to be tried with his co-defendants on the presently set date of October 4, 2005, the 14 government would be forced to call witnesses and submit evidence as to Mr. Preston, and Mr. 15 Preston would not be able to obtain the benefits of Pretrial Diversion. 16 17 Law Under Rule 14(a), the court can server defendant's trials or provide any other relief that

18 justice requires if the joinder for trial appears to prejudice a defendant or the government. In this 19 case, severing the trial of Mr. Preston from that of his co-defendants would avoid the prejudice 20 that might result to him and the government were severance not granted. As indicated above, 21 Mr. Preston's attorney has no opposition to the granting of the requested severance. She has 22 asked that, if the court grants the motion to sever, the court also vacate the status hearing / 23 pretrial conference set September 12, 2005, as to Mr. Preston. 24 Under 18 U.S.C. 3161(h)(2), the court can exclude time for Speedy Trial purposes when

25 prosecution is deferred. Under Section 3161(h)(8)(B)(i), the failure to grant a continuance 26 would likely result in a miscarriage of justice by forcing Mr. Preston to trial and preventing his 27 28
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1 obtaining the benefit of acceptance into the Pretrial Diversion Program and, thus, would be 2 sufficient to support a continuance under Section 3161(h)(8)(A). 3 4 Conclusion For the foregoing reasons, this court should sever the trial of Ed Preston from that of his

5 co-defendants which is presently set for October 4, 2005, and vacate the status hearing / pretrial 6 conference set September 12, 2005, as to Mr. Preston. The court should also continue the trial 7 of Mr. Preston for a period of 90 days to allow his acceptance into the Pretrial Diversion 8 Program. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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I hereby certify that on September 1, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Joanne Landfair Attorney for Ed Preston Brian Russo Attorney for Pat Chee Miller Milagros Cisneros Attorney for Bella Ben-Henry Timothy Holtzen Attorney for Fred Marianito S/ Daniel R. Drake

Respectfully submitted this 1st day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

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