Free Other Notice - 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 R enaissance 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-04-0276-01-PHX-SMM Plaintiff, v. Robert C. Hazlett, Defendant. The United States of America, through its undesigned attorneys, hereby files this notice of intent to waive its right to proceed by way of jury trial in the retrial in the above matter and will consent to the matter being submitted to the court as the trier of fact. This matter was tried to a jury before this court beginning May 10, 2005 and after the presentation of all the government's and defendant's evidence was submitted to the jury on Thursday, May 19, 2005. In the course of the jury's deliberation, they twice sought further instructions from the court and in each case the court urged the jury to reread the original instructions. The jury announced that it was deadlocked on May 24, 2005. The matter is currently scheduled for retrial on October 4, 2005. It is anticipated that the retrial in this matter would be of the same duration as the original presentation, or in other words approximately two weeks. The government in its case chief would recall twenty two witnesses, fourteen of whom are from out of state. Four of the cooperating witnesses who have already plead guilty in this matter are from the local area. One witness, Mr. Thomas Friedlander, on information and belief, is currently on assignment with the United States Army in Iraq. The government would seek to GOVERNMENT'S NOTICE OF INTENT TO WAIVE JURY

Case 2:04-cr-00276-SMM

Document 185

Filed 09/23/2005

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introduce his former testimony from the first trial since it is highly unlikely that his presence could be procured for live testimony. Given the burden of travel to the government's out of state witnesses and in the interest of judicial economy, as well as the interest of justice, the government is prepared to waive its entitlement to jury trial in this matter and proceed with the retrial of this matter based upon a submission of the conspiracy count to the court as the trier of fact in lieu of a jury trial. The government proposes to base its case upon the testimony and evidence that was addeuced in the course of the first trial since this court heard all of the evidence presented at that time. On information and belief the defense is willing to proceed in the same fashion given a stipulation that the loss provable by the government in this matter does not exceed $500,000. This stipulation is based upon the guidance provided in United States v. West Coast Aluminum Heat Treating Company, 265 F. 3d 986, (9th Cir. 2001). There, the 9 th Circuit held in situations where the application of the traditional theft loss definition does not accurately reflect the facts of the fraud, the district court should take a realistic economic approach to determine what losses the defendant truly caused or intended to cause for the purpose of determining the amount of loss within the meaning of the sentencing guidelines. There it was held that the court should not ascribe a larger loss to the defendant than he/she intended to or actually did inflict. It is the district court's obligation to adopt a reasonable, realistic and economic projection of the loss based upon the evidence presented in the matter. On the basis of these sentencing principles of law, the 9th Circuit held in West Coast Aluminum that the profit earned by a defense contractor was not an unreasonable approximation of the loss intended for sentencing purposes based on a theory of unjust enrichment. In West Coast Aluminum the defendant company had certified it had complied with contractual obligations for the heat treating of metal parts which in fact it had not done. By way of analogy in the instant matter, the defendant, through his company received commissions of approximately $500,000 which arose from processing fraudulent loan applications which were insured by the government and then subsequently went into default by 2

Case 2:04-cr-00276-SMM

Document 185

Filed 09/23/2005

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the student borrower. Since the time of default, approximately one half of the loss has already been recovered from the student borrowers, and they continue on a monthly basis to reduce the outstanding balance of defaulted loans. In the event the court elects to accept the stipulation between the parties as to the loss amount and proceed as the trier of fact in this matter, the government would also move to dismiss the remaining bank fraud and student loan fraud counts pending against the defendant. It is anticipated by the government that if this matter proceeds as a bench trial based upon the previously presented evidence, each party would be given the opportunity to advocate its position as to a guilty or a not guilty verdict. Further, the government understands that the defendant will retain his appellate rights in the same manner as would be the case at the conclusion of a jury trial. Respectfully submitted this 23 nd day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Richard I. Mesh RICHARD I. MESH Assistant U.S. Attorney

I hereby certify that on September 23 , 2005, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF System for filing and tra nsmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s): Mr. B ooker T. E vans Greenberg T horough Attorneys at Law 2375 E. Camelback Road Suite 700 Phoenix, AZ 85016 Attorney for d efendant Hazlett

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Case 2:04-cr-00276-SMM

Document 185

Filed 09/23/2005

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