Free Motion for Departure - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD I. MESH Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 002716 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States of America, through its undersigned attorneys, hereby filed this Supplement to its Motion for Downward Departure previously filed on November 7, 2005. This supplement is for the purpose of modifying the governments original recommendation of a two level downward departure to reflect a new government recommendation for a four level downward departure for sentencing purposes. This recommendation is based upon the following reason(s). A. The Arrest of Coconspirator Azizi McNeill. On Thursday, November 10, 2005, co-defendant Azizi McNeill was transported by the United States Marshal from the place of her arrest in Indianapolis, Indiana to Phoenix, Arizona for the purpose of her arraignment on the charges pending against her in the indictment herein. Ms. McNeill is the last of the eight co-defendants to be apprehended in this case. She was the most active participant in the conspiracy as to opening the greatest number of fraudulent bank 1 United States of America, CR - 04­373-06-PHX-JAT Plaintiff, v. Arbuary Daniel Fuller, Jr., Defendant. Supplement to Government's Motion for Downward Departure

Case 2:04-cr-00373-JAT

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accounts and individually caused the highest amount of loss to the victim merchants. Pretrial Services reports that she has two prior felony convictions which will have a substantial impact on her sentencing range in the event she is found guilty of any the 12 felony counts pending against her. The government does not anticipate offering her a cooperation plea agreement since all of her co-defendants have already pled guilty. The crimes listed in the indictment were committed in excess of five years ago. Although the government has evidence that there were other unidentified coconspirators involved in the conspiracy, the statute of limitations will preclude their indictment even if Ms. McNeill was to offer her testimonial assistance to the government. This factual predicate requires the government to ready itself for a trial in Ms. McNeill's case. The defendant Arbuary Daniel Fuller, Jr. has entered into a cooperation plea agreement to testify truthfully against his coconspirators. On information and belief derived from his debriefings and corroboration obtained from independent witnesses, defendant Fuller's testimony will be of great value in the government's case in chief against Ms. McNeill. In cases similar to defendant Fuller's, upon the completion of the cooperation agreement, the government has recommended pursuant to United States Sentencing Guidelines, (USSG) Section 5K1.1, a four level downward departure for other cooperating defendants. These recommendations represent a two level downward departure for entering into a cooperation agreement, which itself may be sufficient in some cases to induce other defendants to plead guilty, stemming from their awareness of the magnitude of the evidence against them. When a cooperating defendant does testify in a trial, an additional two level downward departure is recommended in recognition of an even greater degree of assistance to the government. In the ususal case, the government awaits the completion of a defendant's cooperation before making a 5K1.1 downward departure recommendation. However, this case has turned out to be unusual in several respects. First, defendant Fuller has been transported to Arizona from the State of Nevada, where he is serving a 16-48 month sentence for manslaughter. The government was aware of the 2

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pendency of that case when it negotiated a cooperation plea agreement with defendant Fuller. According to that plea agreement, the government had no objection to the imposition of a federal sentence concurrent with the Nevada sentence. At the time of that agreement, it was anticipated that defendant Fuller might be a trial witness against target defendant Kenneth Smith, a.k.a. Kenneth Foster, a.k.a. Monster. Smith was then pending an extradition from Indiana where he was serving a prison sentence. Thereafter, Smith plead guilty and the government was prepared to go forward with sentencing in Fuller's case. Then co-defendant McNeill entered the picture. Secondly, as noted in the defense motion for downward departure, the delays in reaching sentencing in Fuller's case are not attributable to the defendant. Those delays have prevented him from obtaining in part the benefits of the bargain he agreed to in return for his cooperation. Specifically, the defendant had a reasonable expectation from the government's recommendation that he would be sentenced to concurrent time with the Nevada sentence. A sense of fairness would dictate that sentencing proceed at this time. Thirdly, defendant Fuller has to this date fully abided by his cooperation plea agreement with the government and there is every reason to believe that he will continue to do so, irrespective as to the actual date of imposition of sentence. The government asserts that it is not necessary to hold sentencing over defendant Robinson's head in order to obtain compliance with the terms of the plea agreement. Finally, Ms. McNeill's trial, if it occurs, is not likely to take place before six to nine months from now. It is in the interest of justice and also to bring a sense of finality for the defendant that sentencing proceed at this time. B. Government's Response to Defendant's Motion for Downward Departure. The defendant urges a downward departure on the basis that he should be viewed as a minor participant. Hence, he argues he should be awarded a two level reduction pursuant to U.S.S.G. § 3B1.2. The application note to that section notes that such findings are a "Fact Based Determination." The government has no quarrel with the defense position that there were "leaders" in the 3

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conspiracy, but the defendant Fuller was not one of them. Clearly, if this was true, then he would be subject to an enhancement pursuant to U.S.S.G. 3A1.1 for role in the offense. However, it is incorrect to conclude that because he was not a leader in the conspiracy, that he was a minor player. Again, the defense is correct in its assessment that Fuller was a "worker" in the conspiracy. But in that regard, he was equal to the other "participants" in the conspiracy who also opened fraudulent bank accounts, issued fraudulent checks to merchants, and engaged in refunding the fraudulently acquired merchandise so as to get cash for the scam members. A review of the indictment will reveal that Fullers' modus operandi was the same as his other "codefendants." The government will acknowledge that there were at least three similar and loosely interrelated groups in operation at the same time. These groups were under the direction of Monster (Kenneth Smith); Montana (now believed to be Anthony Pearson) and a group lead by "Tic" (not further identified). In the course of the investigation, the FBI did identify 71 individuals as bad check passers. However, in the absence of insider information or intelligence derived from individual arrests, there was no way for the government to establish which individuals were part of the indicted conspiracy group, one of the other associated groups or just "free lancers" passing bad checks on their own. Through the cooperating defendants, the government now knows that there were other "participants" in the indicted conspiracy often known only by nic-names, but in the absence of sufficient real name identifiers, these persons could not be indicted. It is the purest speculation to allege whatever these unidentified persons criminal activities might have been, is a basis for declaring Fuller as a minor participant. It is submitted to the court that the defendants "function" in the conspiracy cannot and should not be equated with a designation as a minimal or minor participant. Mere facilitators of the offense, who provide the means to commit a crime without personal involvement in the actual body of the crime may qualify for such a designation. That was not the case for defendant Fuller. C. Conclusion. Based upon all the foregoing, it is respectfully recommended that the court adopt the Case 2:04-cr-00373-JAT Document 210 4 Filed 11/23/2005 Page 4 of 5

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presentence report as its sentencing findings as modified by this pleading and award the defendant Robinson a four level downward departure from the total offense level.

Respectfully submitted this 23 rd day of November, 2005.

PAUL K. CHARLTON Unite States Attorney, S/Richard I. Mesh RICHARD I. MESH Assistant Unite States Attorney,
CERTIFICATE OF SERVICE I hereby certify that on the 23 th day of November, 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: Patricia A. Gitre 331 N 1st Ave., Ste. 150 Phoenix, AZ 85003 Attorney for Defendant Fuller S/Richard I. Mesh I hereby certify that on the 23 th day of November, 2005, I served the attached document by fax on the following, who are not registered participants of the CM/ECF system: Guillermo A. Pena Senior U.S. Probation Officer 401 W . W ashington St., Ste. 160 Phoenix, AZ 85003 S/Richard I. Mesh

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