Free Response to Motion - District Court of Arizona - Arizona

1 2 3 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

PAUL K. CHARLTON 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 D E F E N D A N T 'S M O T I O N F O R RELEASE PENDING APPEAL

The United States opposes Defendant's latest Motion for Release Pending Appeal ("Motion) because Defendant presents an economic danger to the community. The Ninth Circuit recently affirmed this Court's prior ruling that Defendant 's lengthy and pervasive history of fraud and dishonesty in his financial dealings presents an economic danger to the community. Respectfully submitted this 18 th day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ IV Assistant U.S. Attorney

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 1 of 6

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 On May 13, 2005, a jury convicted Defendant Andrew Taylor ("Defendant") on nine 4 counts of bankruptcy fraud - three counts of false declaration in bankruptcy in violation of 18 5 U.S.C. § 152(3), two counts of concealment in bankruptcy in violation of 18 U.S.C. § 152(1), and 6 four counts of bankruptcy fraud in violation of 18 U.S.C. § 157. On December 15, 2005, this 7 Court sentenced Defendant to a thirty-three month term of imprisonment and ordered Defendant 8 to self-surrender on January 30, 2006. 9 On January 27, 2006, Defendant filed a Motion for Release Pending Appeal ("Release 10 Motion"). On January 31, 2006, after hearing arguments concerning Defendant's Release 11 Motion, this Court denied Defendant's request for release pending appeal. 12 defendant's Release Motion, this Court reasoned that (1) Defendant had not demonstrated by 13 clear and convincing evidence that he does not pose a danger to the safety of the community and 14 (2) reversal of counts urged by Defendant likely would not affect his sentence. This Court 15 ordered Defendant to self-surrender on March 7, 2006. Defendant self-surrendered on that date. 16 On March 6, 2006, the day before this Court ordered him to self-surrender, Defendant filed 17 a Motion for Bail Pending Appeal with the Ninth Circuit Court of Appeals. On April 7, 2006, 18 the Ninth Circuit denied Defendant's Motion for Bond Pending Appeal, affirming this Court's 19 finding that Defendant failed to demonstrate by clear and convincing evidence that he did not 20 pose an economic danger to the safety of the community. 21 On August 15, 2006, Defendant filed the instant Motion for Release Pending Appeal. 22 II. LEGAL ARGUMENT 23 A. 24 "[A] judicial officer shall order a person who has been found guilty of an offense and 25 sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of 26 certiorari, be detained, unless the judicial officer finds (A) by clear and convincing evidence that 27 28 2 Standard for Release Pending Appeal In denying BACKGROUND

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 2 of 6

1 2 3 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

the person is not likely to flee or pose a danger to the safety of any other person or the community" . . . and (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (I) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1) (Emphasis added.) Defendant should not be released because he fails to satisfy the first prong of section 3143(b)(1), that is, that he fails to demonstrate by clear and convincing evidence that he does not pose an economic danger to the safety of the community. 1/ B. This Court Has Previously Found That Defendant Failed To Demonstrate By Clear And Convincing Evidence That He Does Not Pose a Danger To The Safety Of The Community.

It is well-settled that danger to the community that will justify denial of a request for bail pending appeal may encompass pecuniary or economic harm. See, e.g., United States v. Reynolds, 956 F.2d 192, 192-93 (9 th Cir. 1992). In this case, this Court denied Defendant's previous Motion for Bail Pending Appeal, in part, on the ground that Defendant failed to demonstrate by clear and convincing evidence that he does not pose a danger to the safety of the community. Specifically, this Court found: [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. 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 In his instant Motion for Release Pending Appeal, Defendant raises several new factual and legal challenges to his conviction. The government will not respond to these new arguments because they do not diminish this Court's previous finding that Defendant has failed to satisfy the first prong of section 3143(b)(1), that is, to demonstrate by clear and convincing evidence that he does not pose a risk of economic danger to the community. Accordingly, Defendant is not entitled to release pending appeal, even if he were to raise substantial questions of law or fact likely to result in a reversal of his conviction or a reduction in his sentence. 3
1/

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 3 of 6

1 2

to do it. So, for that reason, for those reasons, the Court will deny the motion for release conditions pending appeal. (RT 1/31/06 49-50, attached as Exhibit 1).

3 This Court's finding that Defendant poses an economic danger to the community is supported 4 by Defendant's conviction in the instant case, as well as his lengthy history of financial crimes, 5 including unlawful issuance of bank checks, theft, using a false social security number, and a 6 2004 charge for fraud and insufficiency of checks. Moreover, Defendant has engaged in 7 significant civil misconduct, including an allegation that in 2003 he defrauded a victim of 8 $18,000 when he sold the victim's aircraft but failed to provide the victim the proceeds of the 9 sale. (Presentence Investigation Report, ¶¶ 35-43, 45-60.) 10 Defendant has failed to demonstrate by clear and convincing evidence that he does not pose 11 an economic danger to the community. See, Reynolds, 956 F.2d at 192-93. Consequently, 12 Defendant is not entitled to release pending appeal, even if he were to raise substantial questions 13 of law or fact likely to result in a reversal of his conviction or a reduction in his sentence. 14 Accordingly, the government respectfully requests that this Court deny Defendant's Release 15 Motion. 16 17 18 On April 7, 2006, the Ninth Circuit denied Defendant's Motion for Bond Pending Appeal, 19 thus, affirming this Court's finding that Defendant failed to demonstrate by clear and convincing 20 evidence that he did not pose an economic danger to the safety of the community. 21 Defendant asserts that he has demonstrated by clear and convincing evidence that he does 22 not present an economic danger to the community because he has not committed additional 23 crimes during his release pending trial and sentencing. (Motion at 16-17) 24 To the contrary, the government submits that Defendant has not offered any new evidence 25 to diminish the reasoning of this Court, or the Ninth Circuit, in denying his previous motions for 26 release pending appeal. This Court was aware of Defendant's conduct while on release when it 27 28 4 C. The Ninth Circuit Has Affirmed This Court's Finding That Defendant Failed To Demonstrate By Clear And Convincing Evidence That He Does Not Pose a Danger To The Safety Of The Community.

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 4 of 6

1 2 3 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

denied his first motions for release pending appeal. The government submits that Defendant's conduct while on release does not mitigate the economic danger he presents to the community, as demonstrated by a lifetime of fraud and financial dishonesty. This Court and the Ninth Circuit have recently denied Defendant's motion for release pending appeal and Defendant should not be permitted to revisit this issue. III. CONCLUSION For the reasons set forth above, the government respectfully requests that the Court deny Defendant's Motion for Release Pending Appeal . Respectfully submitted this 18 th day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ IV Assistant U.S. Attorney

5

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 5 of 6

1 2 3 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

CERTIFICATE OF SERVICE I hereby certify that on August 18, 2006, 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: Anders Rosenquist, Jr. 80 East Columbus Phoenix, AZ 85012 /S/ JOHN LOPEZ

6

Case 2:04-cr-00809-NVW

Document 155

Filed 08/18/2006

Page 6 of 6