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 Arizona State Bar No. 002716 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-04-0276-04-PHX-SMM Plaintiff, v. David Honderd, Defendant. The United States of America, by and through its undesigned attorneys, hereby moves this court pursuant to United States Sentencing Guidelines, §5K1.1 for a downward departure in the sentencing range applicable to the defendant, David Honderd, in the cause to reflect his substantial assistance to the government in the trial of his conspirator, Robert C. Hazlett. In the earliest phase of the prosecution against the defendant, he expressed his remorse for his involvement in the fraudulent conduct to which he has now plead guilty. Through his counsel, the defendant expressed a willingness to testify truthfully in any subsequent proceeding concerning his own misconduct as well as that of his co-conspirators. The government agreed to accept that offer of cooperation and incorporated it into the defendant's plea agreement. Thereafter on May 13, 2005 the defendant was called as a witness in the trial of co-conspirator, Robert C. Hazlett. The defendant's testimony in that matter was consistent with the defendant's earlier statements given to agents of the Federal Bureau of Investigation. The defendant's testimony was consistent with the documentary evidence GOVERNMENTS MOTION FOR DOWNWARD DEPARTURE PURSUANT TO U.S.S.G. §5K1.1

submitted to the jury. Although the defendant was subjected to a full and complete cross

Case 2:04-cr-00276-SMM

Document 196

Filed 10/27/2005

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examination, it is submitted to the court that no evidence was developed to indicate the defendant's testimony was anything other than completely truthful and forthcoming. On the basis of this record, the government moves this court pursuant to U.S.S.G. §5K1.1 for a downward departure in the range of punishment to be imposed upon the defendant. It is submitted to the court that the defendant's testimony concerning the involvement of Robert C. Hazlett was consistent with that of the independent testimony of other witnesses. In the evaluation of the usefulness of the defendant's testimony it should be remembered that he testified as to the personally incriminating conversations with the defendant as well as communications that were conveyed by innuendo as well as straight forward speech. It is submitted to the court that this testimony was very valuable to the jury as to its deliberation in this case. In the balancing between imposing a sanction for the defendant's own wrongful behavior and properly recognizing his assistance to the government, the following factors are deemed appropriate by the government: 1. The defendant was without a previous record of criminal behavior. 2. The defendant could have accomplished in a lawful manner the processing of the student loan applications if he had merely waited for the successful completion of the six payment periods, rather than short cutting that requirement by misrepresenting the applicant's payment history. 3. The defendant did not intend financial harm anyone through his action, albeit the loss to the bank and the government were an unintended consequence of his actions. 4. The defendant while engaging in wrongful activity, did at least to some degree, have reason to believe from the management of Valley Acceptance Corporation that some adjustment was being negotiated to allow for a lower past payment history requirement for loan applicants. On the basis of all the forgoing, the government recommends a four level downward departure from the total offense calculation of 13 as found in the pre-sentence report, paragraph 2

Case 2:04-cr-00276-SMM

Document 196

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82. This recommendation reflects that by entering into a cooperation agreement to government obtained a tool with which to convenience other defendants in the conspiracy that they too should plead guilty. The cooperation on the part of the defendant is deemed to be as valuable as the defendant's own acceptance of responsibility. Thereafter, the defendant provided further assistance to the government by in fact testifying without reservation as to fellow conspirators' criminal activity. That additional cooperation should be deemed to be an equal weight as the defendant's acceptance of his own responsibility in this matter. Therefore, taking into account the defendant's own criminal activity, his subsequent remorse, personal acceptance of responsibility and substantial assistance to the government, it is recommended that the court conclude an adjusted total offense level of 9 is appropriate in this case and impose sentence according to that guideline. Respectfully submitted this 27 th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Richard I. Mesh _____________________ RICHARD I. MESH Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on the 27 th day of October, 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: George F. Klink, Esq. 45 W est Jefferson Suite 220 Phoenix, AZ 85003 Attorney for Defendant Prather Greg Clark, Esq. 45 W est Jefferson 11th Floor Phoenix, AZ 85003 Attorney for Defendant Honderd Dana Carpenter, Esq. 3106 N. 16th Street Phoenix, AZ 85016 Attorney for Defendant Evans Booker T. Evans, Esq. 2375 E. Camelback Rd., Ste 700 Phoenix, AZ 85016 Attorney for Defendant Hazlett S/Richard I. Mesh I hereby certify that on 27 th day of October, 2005, I served the attached document by fax on the following, who are not registered participants of the CM/ECF system: Shawn T. Shear Senior U.S. Probation Officer 401 W . W ashington St., Ste 160 Phoenix, AZ 85003 S/Richard I. Mesh

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