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-1018-PHX-JAT Plaintiff, v. Pat Chee Miller, Defendant. The United States moves the court, pursuant to Rule 14(a), Fed. R. Crim. P., to sever the MOTION TO SEVER TRIAL OF PAT CHEE MILLER

15 trial of defendant Pat Chee Miller from that of his co-defendants because Mr. Miller has been 16 incapacitated as the result of a one-car accident. Mr. Miller suffered severe injuries in the 17 accident, and is still hospitalized as a result. Forcing a trial of Mr. Miller's case with that of his 18 co-defendants would work a prejudice to the government and to Mr. Miller, who has been unable 19 to assist his attorney prepare for trial. The government likely will file a motion to dismiss the 20 charges as to Mr. Miller, but is awaiting further information before it does so. Counsel 21 undersigned has spoken with Brian Russo, the attorney for Mr. Miller, and he does not oppose 22 the granting of this motion. 23 24 //// 25 //// 26 //// 27 28 This motion is further supported and explained by the attached memorandum.

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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 MEMORANDUM 9 10 11 Henry, and Ed Preston as participants in a scheme to make false statements about a matter within 12 the jurisdiction of a federal agency, the Department of Health and Human Services. The 13 indictment charged that defendants Pat Chee Miller, Bella Ben-Henry, Fred Marianito, and Ed 14 Preston falsely certified, or caused the false certification of payment requests submitted to the 15 Navajo Nation for payment under the above contracts. The certifications were false because 16 they indicated the work had been completed to various stages when, in fact, the work had not 17 progressed to that point. Indeed, according to the indictment, Miller was paid for units that were 18 not built and not delivered to their specified sites. Miller received approximately $730,000 by 19 virtue of false certifications and, as a result, was paid in full for complete performance under the 20 contracts when the work was not done. As of the date of final payment to Miller on September 21 30, 1999, only one of the 17 units had been delivered to its designated site on the reservation, 22 and Miller had been paid more than $2.4 Million. 23 Unfortunately, Mr. Miller suffered serious injuries in the automobile accident. According 24 to his attorney, Brian Russo, Mr. Miller has been unable to assist in his defense, and Mr. Russo 25 has asked the government to dismiss the charges against Mr. Miller as he likely will not fully 26 recover from these injuries. The government is reluctant to dismiss the charges at this point and 27 28
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Respectfully submitted this 2nd day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

FACTS The grand jury returned a five count indictment naming Pat Chee Miller, Bella Ben-

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1 feels that the appropriate remedy at this time is a severance. Mr. Russo indicated today that he 2 had additional, updated information concerning the direness of Mr. Miller's circumstances, but 3 the government has not yet reviewed that information. According to Mr. Russo attempts were 4 made to transfer Mr. Miller to a rehabilitation center but his condition could not be stabilized 5 sufficiently to do so. 6 7 8 Law Under Rule 14(a), the court can server defendant's trials or provide any other relief that

9 justice requires if the joinder for trial appears to prejudice a defendant or the government. In this 10 case, severing the trial of Mr. Miller from that of his co-defendants would avoid the prejudice 11 that might result to him and the government were severance not granted. As indicated above, 12 Mr. Miller's attorney has no opposition to the granting of the requested severance. 13 14 Conclusion For the foregoing reasons, this court should sever the trial of Pat Chee Miller from that

15 of his co-defendants which is presently set for October 4, 2005. If the court grants this motion 16 to sever, the court is also requested to vacate the status hearing / pretrial conference set 17 September 12, 2005, as to Mr. Miller. Respectfully submitted this 2nd day of September, 2005. 18 19 20 21 22 23 24 25 26 27 28
I hereby certify that on September 2, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and

PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

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transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Brian Russo Attorney for Pat Chee Miller Joanne Landfair Attorney for Ed Preston Milagros Cisneros Attorney for Bella Ben-Henry Timothy Holtzen Attorney for Fred Marianito S/ Daniel R. Drake

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