Free Reply to Response - District Court of Arizona - Arizona

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Anders Rosenquist Jr., Bar No. #002724 ROSENQUIST & ASSOCIATES ATTORNEYS AT LAW 80 East Columbus Phoenix, AZ 85012 TELEPHONE: (480) 488-0102 Attorney for Defendant-Appellant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW TAYLOR, Defendant-Appellant. Defendant, Andrew Taylor (hereinafter "Defendant"), through undersigned counsel, hereby replies to the United State's Response to Defendant's Motion for Release Pending Appeal. This Reply further supports Defendant's request that he be released pending his direct appeal in this matter pursuant to Fed. R. Crim. P. 46(c) and 18 U.S.C. § 3143(b), and that his sentence of imprisonment be stayed pursuant to Fed. R. Crim. P. 38(b). I. THE UNITED STATES DOES NOT ARGUE THE FACT, NOR DISPUTE, THAT DEFENDANT IS NOT LIKELY TO FLEE. 18 U.S.C. § 3143(b), which governs the release or detention of a defendant pending appeal, states that a person may be released pending appeal if the judicial officer finds by clear DEFENDANT'S REPLY TO UNITED STATES' RESPONSE TO DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL No. CR-04-00809-PHX-NVW

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and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person in the community if released. First, the United States does not dispute that the Defendant is not likely to flee. Instead, based upon Defendant's performance while on release prior to, during and after trial, both parties seem to agree that Defendant is not likely to flee if released pending his appeal. II. THE UNITED STATES ALSO DOES NOT ARGUE THE FACT, NOR DISPUTE, THAT DEFENDANT'S APPEAL RAISES A SUBSTANTIAL QUESTION OF LAW OR FACT LIKELY TO RESULT IN REVERSAL OR AN ORDER FOR A NEW TRIAL. Second, the United States in its response never disputes that Defendant's appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial from the Ninth Circuit. Before ordering Defendant's release during appeal, the Court must find that Defendant's appeal is not for the purpose of delay and raises a "substantial question" of law or fact "likely to result" in a new trial or reversal of conviction. 18 U.S.C. § 3143(b)(1)(B)(ii). In this circuit, a "substantial question" is one that is "fairly debatable." United States v. Handy, 761 F.2d 1279, 1281-83 (9th Cir. 1985). Although the Court ruled against Defendant on a variety of issues in post-trial briefing, which are now the subject of Defendant's appeal, this Court is well aware that the issues presented are, at a minimum, "fairly debatable" due to the lack of any case law being directly on point. Furthermore, if Defendant prevails on one or more of his claims presented on appeal he is likely to be granted a new trial because under the relevant law Defendant's actions in no way constituted a crime and therefore he should never have been charged in the first place. The

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United States does not dispute these propositions in their Response to Defendant's Motion for Release Pending Appeal. III. DEFENDANT HAS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT HE DOES NOT POSE A DANGER TO THE SAFETY OF THE COMMUNITY. The United States rests its sole reasoning against Defendant's release pending appeal on the argument that he failed "to demonstrate by clear and convincing evidence that he does not pose an economic danger to the safety of the community." 18 U.S.C. § 3143(b), which governs the release or detention of a defendant pending appeal, states that a person may be released pending appeal if the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person in the community if released. However, Defendant has met this burden of proving, by clear and convincing

evidence, that he does not pose a danger to the safety of the community. Defendant was on release status from his arraignment on August 18, 2004 until his selfsurrender date on March 7, 2006. Defendant was on release prior to his trial and throughout his entire criminal trial. During the approximately two years Defendant was on release in this case, Defendant complied with the law and with all restrictions imposed upon him by this Court. Defendant agrees that the government previously persuaded the Court, regarding Defendant's first motion for release pending appeal, that although Defendant did not pose a `physical' danger or risk to the community, he somehow posed an `economic' risk to the community. However, at that time the Court based its decision on incorrect and highly

misleading information regarding Defendant's criminal history in the Presentence Report.
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Furthermore, due to trial counsel's ineffective assistance in representing Defendant both at trial and during post-trial motions, the fact that Defendant's criminal history was distorted by the Presentence Report was never brought before this Court. First, the Presentence Report only sets forth four crimes for which the Court can be certain Defendant was convicted of a felony. Report, attached as Exhibit "A"). (See Excerpt from Defendant's Presentence (a) issuing a check on

Those four felonies include:

insufficient funds over $250.00, for which Defendant received five years prison; (b) issuing a check on insufficient funds over $250.00, for which Defendant received 24 month prison concurrent with the sentence above; (c) issuing a check on insufficient funds over $250.00, for which Defendant received 30 months prison, concurrent with above; and (d) theft for which Defendant received 36 months prison, concurrent with above. (See Exhibit "A" p. 8-10). All four of these felonies were committed over an eleven-month period of time, between December 1979 and October 1980. The Defendant was only ages 25 and 26 when all of the offenses occurred. These offenses occurred 26 years ago. The only other felony referred to in the Presentence report were only felony charges for using a false social security number, which occurred on September 27, 1991, and false statement to an insured bank. (See Exhibit "A" p. 12). Although Defendant was charged with felonies, it cannot be determined from the

Presentence Report what the Defendant actually plead to, and whether that charge was a felony or a misdemeanor. Given the fact that Defendant was only sentenced to one month in prison, it is likely that Defendant plead to a much lesser charge, which was probably only a misdemeanor.

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Second, the only other four offenses of which Defendant has ever been convicted were misdemeanors. Three of the four misdemeanor convictions were not even "financial" crimes. Defendant's misdemeanor convictions consisted of: (a) a $10.00 check written on a closed account (this happened 31 years ago); (b) no valid driver's license; (c) obstructing a public servant; and (d) engaging in aeronautics without appropriate rating. (See Exhibit "A" p. 7-12). All of those misdemeanor convictions occurred 15 to 31 years ago. Therefore, in conclusion, Defendant was only convicted of five "financial" crimes (four felonies and one misdemeanor), most of which occurred within a small time period and all of which occurred over 25 years ago. Therefore, the Presentence Report's rendition of Defendant's criminal history, upon which this Court relied, is highly misleading. Defendant is of the position that a lot of the above charges were false, and even though he plead to them he had no choice. The charges occurred over 25 years ago when Defendant was a victim of racial prejudice because he was a successful businessman and a lot of the people in the small towns in which he resided at that time did not like to see a black man living so well. Third, all other charges referred to in the Presentence Report were either dismissed or never filed, and this includes the charges of fraud and insufficient funds checks for which the Presentence Report indicated that the charges were pending and Defendant was set to go to trial. (See Exhibit "A" p. 14). This could have been for any number of reasons, including the fact that Defendant was actually innocent of the charges. In fact, the Presentence Report states that Defendant was arrested for assault and the charges later dismissed. (See Exhibit "A" p. 15). However, Defendant has never been arrested for assault and does not recall any such incident.
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Regarding the charge of fraudulent schemes and artifices, in which the owner of AIS, Thomas Robinson, attempted to have criminal charges pursued against Defendant in superior court. (See Exhibit "A" p. 13-14). Those charges were dismissed because there was "no reasonable

likelihood of conviction." In other words, the authorities believed there was no evidence to convict Defendant of the offenses for which Mr. Robinson was accusing him. In fact, the prosecutor eventually determined that the owners of AIS were not being candid, and that Mr. Robinson's testimony was unreliable. The charges against Defendant were dismissed after taperecorded interviews with Mr. Robinson were conducted. Fourth, regarding the two civil matters referred to in the Presentence Report, neither of the claims were found to be valid. (See Exhibit "A" p. 16). Regarding Bahrat Lal's civil cases, it was established in the restitution hearing held in this case, that Mr. Lal lied about material facts in his testimony at trial. This is an issue raised in the Opening Brief filed in this case, a copy of which was attached to Defendant's Motion. As a result, Mr. Lal's civil claims are fraudulent. Also regarding the Olsen's civil case against Defendant, the statement of facts given in the Presentence Report is one-sided and does not describe the situation fairly. Also, that case against Defendant was ultimately dismissed, although the Presentence Report fails to give the reason as to why dismissal was ordered. (See Exhibit "A" p. 16). However, it does appear that no hearings were held in the matter, and the case may have been dismissed due to a failure to prosecute. (See Docket, attached as Exhibit "B"). Fifth, Defendant has not committed any new crimes and has complied with all of his release conditions, including not applying for or opening any new lines of credit without
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permission of the Court. Furthermore, Defendant had been in Chapter 13 bankruptcy for over twenty (20) months due to filing his most recent Chapter 13 on October 19, 2004. During the time of Defendant's most recent Chapter 13, Defendant complied with all requirements regarding his finances in that matter until it was dismissed due to his incarceration. Defendant also made all required plan payments prior to being incarcerated. However, that Chapter 13 was dismissed shortly after Defendant's incarceration in this matter due to his inability to fund the plan. Other than Defendant's inability to make the payments due to his incarceration in this matter, he did comply with all other requirements. Although there was some confusion as to the exact amount Defendant was required to pay after the filing of an Amended Plan in that matter, Defendant made every plan payment as set forth in the original Plan. Lastly, Defendant was ordered to pay all restitution in full in this matter by September 12, 2006. Defendant and his family recently sold their home in an effort to meet this financial responsibility. The home is currently in escrow and when the sale is complete, Defendant will be able to pay all of his restitution. Defendant has done nothing over the past several years to cause this Court to believe that he is somehow an `economic' risk to the community. Instead, Defendant has shown complete financial responsibility. Due to Defendant's performance while on release status, the fact that he was not convicted of a violent crime, and the fact that he does not pose an `economic' risk to the community, Defendant has demonstrated by clear and convincing evidence that he does not pose a danger to the safety of any other person or the community if he were to be granted release pending his appeal.
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IV.

CONCLUSION Based upon the foregoing, Defendant respectfully requests this Court order that

Defendant be released pending his appeal. Defendant further requests that the remaining portion of his sentence of imprisonment be stayed pursuant to Fed. R. Crim. P. 38(b). RESPECTFULLY SUBMITTED this 24th day of August 2006.

ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders V. Rosenquist Attorney for Defendant

ORIGINAL filed this 24th day of August 2006 with: Office of the Clerk Arizona District Court COPY delivered this day of August 2006 to: 24th

John R. Lopez Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408 Andrew Taylor

By:

/s/ Anders Rosenquist
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