Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona John R. Lopez IV Assistant U.S. Attorney Arizona State Bar No. 019182 Two Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Andrew Taylor, Defendant.

CR-04-0809-PHX-NVW UNITED STATES' RESPONSE TO DEFENDANT'S MOTION FOR OVERNIGHT FURLOUGH

For the reasons discussed in the attached Memorandum of Points and Authorities, the United States opposes Defendant's Motion for Overnight Furlough. Respectfully submitted this 24 th day of August, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ IV Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND On May 13, 2005, a jury convicted Defendant Andrew Taylor ("Defendant") on nine counts of bankruptcy fraud - three counts of false declaration in bankruptcy in violation of 18 U.S.C. § 152(3), two counts of concealment in bankruptcy in violation of 18 U.S.C. § 152(1), and four counts of bankruptcy fraud in violation of 18 U.S.C. § 157. On December 15, 2005, this Court sentenced Defendant to a thirty-three month term of imprisonment. On March 6, 2006, the day before this Court ordered him to self-surrender, Defendant filed a Motion for Bail Pending Appeal with the Ninth Circuit Court of Appeals. On April 7, 2006, the Ninth Circuit denied Defendant's Motion for Bond Pending Appeal, affirming this Court's finding that Defendant failed to demonstrate by clear and convincing evidence that he did not pose an economic danger to the safety of the community. On July 19, 2007, the Ninth Circuit reversed Defendant's conviction on three counts, but affirmed on the remaining six counts. In addition, the Ninth Circuit determined that Defendant should not have been assessed criminal history points for one of his convictions. This Court has scheduled Defendant's re-sentencing for September 11, 2007. II. LEGAL ARGUMENT A. Overnight Furlough

Pursuant to 18 U.S.C. § 3622 and 28 C.F.R. § 570.32(a)(8), a federal inmate may be released for an overnight furlough "[t]o appear in a criminal court proceeding, but only when the use of a furlough is requested or recommended by the applicable court or prosecuting attorney." See United States v. Dellorfano, Jr., 1995 WL 337087 (E.D.Pa. 1995) (rejecting a request for a furlough to attend a criminal court proceeding because defendant's proffered reasons for seeking a furlough were self-serving and reflected only "his desire for greater freedom than his incarceration permits.")

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B.

Defendant Presents An Economic Threat To The Community And He Cannot Demonstrate A Legitimate Reason For His Requested Furlough Other Than To Avoid Punishment.

In this case, Defendant requests that the Court enter an order requesting that the Bureau of

4 Prisons grant him a furlough "beginning immediately and continuing until further order of the 5 Court." In support of this extraordinary request, Defendant argues that he has been granted day 6 furloughs and that he complied with pre-trial and pre-sentencing conditions. Defendant also 7 asserts that "it appears Defendant will be re-sentenced to time served because he has already 8 served 18 months of a 33-month sentence." Defendant's arguments are not persuasive. 9 The government has not argued during this case that Defendant presents a flight risk. For this

10 reason, the government did not seek Defendant's pre-trial detention, nor did it seek his detention 11 prior to sentencing. In fact, the government demonstrated compassion when it agreed to extend 12 Defendant's self-surrender date while he cared for his ailing wife. However, Defendant should 13 not be permitted to use the government's reasonable position concerning his detention prior to his 14 conviction and sentencing to escape any portion of his term of imprisonment. 15 While the government has not argued that Defendant is a flight risk, it has maintained that he

16 presents an economic danger to the community. In fact, this Court and the Ninth Circuit denied 17 Defendant's request for release on bail pending appeal on the ground that he failed to demonstrate 18 by clear and convincing evidence that he does not pose a danger to the safety of the community. 19 Specifically, this Court found: 20 21 22 23 24 25 26 (RT 1/31/06 49-50). 27 28 3 If this were an offense that were new or uncharacteristic or recent, I might have a different view. But I'm ­ I do not see clear and convincing evidence to rise above that general fact and conclusion that he has a long history of financial fraud, and therefore, he's not carried his burden of persuading me by clear and convincing evidence that he will not continue to take financial ­ unfair and unlawful advantage of others if he's free to do it. So, for that reason, for those reasons, the Court will deny the motion for release conditions pending appeal. [I]n any event, I'm not persuaded by clear and convincing evidence that the defendant does not pose a danger to the safety of other persons or the community. And I reach that conclusion based on the defendant's criminal history, a long lifetime going back for a long period of time of activities involving financial dishonesty.

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The government contends that 18 months in prison likely have not changed Defendant's

2 propensity to commit fraud. Defendant's premature release from prison, especially for an 3 extended period of time, would endanger the public. 4 5 Defendant argues that the Court should grant his request for an open-ended furlough, in part, 6 because he will be re-sentenced to an 18-month time served sentenced. 7 Defendant was sentenced to 33 months on each count of conviction to be served concurrently. 8 Reversal of three of Defendant's nine counts of conviction will not affect his sentence. While 9 Defendant's criminal history category may result in a lower sentencing range, his range will likely 10 be at least 21-27 months ­ significantly longer than the 18 months he has served. Moreover, this 11 Court has indicated that it would consider imposing an upward departure for under-representation 12 of criminal history if Defendant's Snohomish County conviction was determined to be ineligible 13 for computing his criminal history. (RT 12/12/05, 22.) At this point, Defendant's assertion that 14 he will receive an 18 month time served sentence is not supported by the record. 15 Defendant is not entitled to an overnight furlough. His request may be granted only where the 16 Court or the government requests or recommends it. Defendant has been convicted of six counts 17 of bankruptcy fraud and he victimized several individuals in the process. As punishment, he has 18 been sentenced to a term of imprisonment. Defendant should serve each day of his term in 19 custody. While the government and the Court were not consulted concerning Defendant's day 20 furloughs, the government respectfully submits that Defendant's request for an open-ended 21 furlough under these circumstances is unreasonable and unwarranted. 22 23 /// 24 25 26 /// 27 28 4 C. Defendant's Assertion That He Will Be Sentenced To Time Served Is Not Supported By The Record.

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CONCLUSION For the reasons set forth above, the government respectfully requests that the Court deny

3 Defendant's Motion for Overnight Furlough. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Respectfully submitted this 24 th day of August, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ IV Assistant U.S. Attorney

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 24, 2007, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF system for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 5 Anders Rosenquist, Jr. 6 80 East Columbus Phoenix, AZ 85012 7 /S/ John R. Lopez IV JOHN R. Lopez IV 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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