Free Motion for Departure - 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 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

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0276-02-PHX-SMM Plaintiff, v. Suzanne Prather, 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 in this cause to reflect her substantial assistance to the government in the trial of her fellow conspirator, Robert C. Hazlett. In the earliest phase of the prosecution against the defendant she expressed her remorse for her involvement in the fraudulent conduct to which she has now plead guilty. The defendant expressed a willingness to testify truthfully in any subsequent proceeding concerning her own misconduct as well as that of her co-conspirators even though she was not obligated to do so under the terms of her plea agreement. The government initially declined to accept the defendant's offer of cooperation because the defendant had processed the greatest amount of fraudulent loans among the indicted loan processors. Also, the defendant, out of a misguided sense of loyalty to her codefendant and boss, Robert C. Hazlett, had initially not been forthcoming with the FBI agents but did rectify that with a truthful statement in a subsequent interview. Additionally, given these circumstances the government elected to test the GOVERNMENTS MOTION FOR DOWNWARD DEPARTURE PURSUANT TO U.S.S.G. 5K1.1

Case 2:04-cr-00276-SMM

Document 198

Filed 10/28/2005

Page 1 of 4

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

defendant's remorse and sincerity by offering her the opportunity to testify without a prearranged agreement for a favorable sentencing recommendation from the government. 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 all of the defendant's earlier statements given to agents of the FBI. It is submitted to the court that the defendant's testimony concerning the involvement in the conspiracy of Robert C. Hazlett was consistent with that of the independent testimony of other witnesses. The defendant's testimony was consistent with the documentary evidence submitted to the jury. Although the defendant was subjected to a full and complete cross 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 defendant has now become entitled to the government's motion to this court pursuant to U.S.S.G. § 5K1.1 for a downward departure in the range of punishment to be imposed upon her. In the evaluation of the usefulness of the defendant's testimony it should be

remembered that she testified as to her own personal incriminating conversations with the defendant as well as communications that were conveyed by innuendo as well as straightforward speech. Her testimony covered a period of time after the initial conspirators Gregory Evans and James Stevens had left Valley Acceptance Corporation, but yet the criminal activity continued through the defendant's processing of the fraudulent loans with the knowing concurrence and participation of codefendant Robert C. Hazlett. 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 her assistance to the government, the following factors are deemed appropriate by the government: 1. The defendant was without a previous felony record. 2. The defendant could have accomplished in a lawful manner the processing of the student loan applications if she had merely waited for the successful completion of the six payment period, rather than short cutting that requirement by misrepresenting the applicant's payment history. 2

Case 2:04-cr-00276-SMM

Document 198

Filed 10/28/2005

Page 2 of 4

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

3. The defendant did not intend financial harm to anyone through her action, albeit the loss to the bank and the government were an unintended consequence of her 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. 5. The sincerity of the defendant's remorse can be vouched for through her willingness to testify without a written guarantee of a favorable sentencing recommendation from the government. On the basis of all the forgoing, the government recommends a six level downward departure from the total offense calculation of level 15, as calculated in the government's separate filing of objections to the presentence report. This recommendation reflects that through the defendant's cooperation the government received an enhanced ability to convince the jury of codefendant Hazlett's involvement in the conspiracy. The cooperation on the part of the defendant is deemed to be as valuable as that of the other similarly situated defendants who testified pursuant to their own cooperation agreements. In so far as the government has recommended a 6 level reduction as to those defendants, in order to maintain consistency, the government makes the same recommendation on behalf of the defendant Prather. Therefore, taking into account the defendant's own criminal activity, her subsequent remorse, her personal acceptance of responsibility and her 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 28th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Richard I. Mesh RICHARD I. MESH Assistant U.S. Attorney

3

Case 2:04-cr-00276-SMM

Document 198

Filed 10/28/2005

Page 3 of 4

1
CERTIFICATE OF SERVICE

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
S/Richard I. Mesh Dana Carpenter, Esq. 3106 N. 16th Street Phoenix, AZ 85016 Attorney for Defendant Evans Greg Clark, Esq. 45 W est Jefferson 11th Floor Phoenix, AZ 85003 Attorney for Defendant Honderd Booker T. Evans, Esq. 2375 E. Camelback Rd., Ste 700 Phoenix, AZ 85016 Attorney for Defendant Hazlett George F. Klink, Esq. 45 W est Jefferson Suite 220 Phoenix, AZ 85003 Attorney for Defendant Prather I hereby certify that on the 28 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:

18 19 20 21 22 23 24 25 26 27 28 4
Shawn T. Shear Senior U.S. Probation Officer 401 W . W ashington St., Ste 160 Phoenix, AZ 85003 S/Richard I. Mesh I hereby certify that on 28 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:

Case 2:04-cr-00276-SMM

Document 198

Filed 10/28/2005

Page 4 of 4