Free Sentencing Memo (Supporting Documents) - District Court of Arizona - Arizona

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Tonya J. McMath 111 W Monroe Suite 1650 Phoenix, AZ 85003 (602) 254-5544 Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Paul K. Bryan, ) ) Defendant. ) __________________________________________) I. Introduction Defendant, Paul K. Bryan, through undersigned counsel, respectfully requests this Court to determine Mr. Bryan's appropriate Total Offense Level to be 18, with a Criminal History Category I, for reasons set forth in the parties' objections to the presentence report ("PSR"), and thereafter to impose a sentence at the low end of the applicable guideline range of 27 months, as recommended by the government in ¶ 2(a)(6) of the Plea Agreement. In support thereof, Mr. Bryan would like to take this opportunity to rectify and/or ameliorate certain unfavorable conclusions and findings regarding him previously made by the Court in understandable reliance on information supplied by third parties, including undersigned counsel, which information may have been incomplete, misleading, or inaccurate. II. Mr. Bryan's Back Surgery/Medical Releases A. The Court's Findings United States of America, No. CR 03-1269-002-PHX-NVW DEFENDANT'S SENTENCING MEMORANDUM

Following a status hearing conducted on October 4, 2004, the Court entered the following Order: In a minute entry dated October 4, 2004, the Court granted Defendant's motion to continue the trial. Counsel advised the Court at the status hearing of October 4, 2004, that she was newly appointed to the case, which involves complex issues of alleged financial fraud, and that she was inadequately prepared for trial because both she and her client had to have surgery within the last few months.

Case 2:03-cr-01269-NVW

Document 250

Filed 03/30/2006

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Counsel could not vouch for the Defendant's alleged surgery but presented to the Court Defendant's unsworn and uncorroborated statements to her. While the Court granted the motion to continue, it notes that Defendant failed to substantiate his claim of medical needs preventing his assistance to his counsel. Both Defendant's counsel and the Government's counsel called Defendant's treating physician to confirm his medical needs, but no return calls were made to verify Defendant's assertions. Defendant sent a letter to counsel explaining that his physician does not speak with attorneys. The Court finds that this is not an adequate showing to justify failure to cooperate with counsel in preparation for trial. No further continuances based on illness, health, or failure of Defendant to assist his counsel will be granted absent the following: 1) An affidavit or declaration under penalty of perjury from Defendant's treating physician verifying both the past assertions about Defendant's surgery and the specific factual basis supporting any future health condition that prevents him from assisting in the preparation for or attendance at his criminal trial, or For any non-health reason that prevents counsel [sic] from assisting in trial preparation or attending trial, a detailed affidavit or declaration under penalty of perjury from a person with first-hand knowledge of the reasons Defendant is hindered from assisting in his own defense or attending trial.

2)

IT IS THEREFORE ORDERED that no further continuances will be granted due to Defendant's illness, health, or failure of Defendant to assist his counsel absent evidence in accordance with this order. [doc. 39] The Court has alluded to these findings on several subsequent occasions. At an October 7, 2005 hearing on Mr. Bryan's Motion for Competency Evaluation, the following exchange transpired between the Court and defense counsel: he? THE COURT: He has been assisting you for the last year and a half, hasn't MS. MCMATH: Yes, he has, Your Honor. THE COURT: Except when he wouldn't provide certain medical releases for the previous continuance. But other than that, I'm not aware of any cases where he did not assist you up until the last week, right? MS. MCMATH: No, Your Honor. And I don't recall that he didn't provide me with releases. I have subsequently gotten all of those medical records. THE COURT: I was thinking back of the ­ geez, it was over a year ago, wasn't it?

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2004.

MS. MCMATH: It was, Your Honor. Well, it was November [sic] of

THE COURT: When you moved for a trial continuance based on the fact that he had an illness but he refused to sign the medical releases that would allow you to get ­ to communicate with his physician to confirm or not his claim of a medical inability. And I am remembering that because I remember I granted your continuance, and I ruled that if he declined to assist counsel in the future, he was going to trial with an unassisted lawyer. Now, that's different from whether he is mentally incompetent to the point where he cannot assist his attorney. But at that point, my sense was that he was willfully refusing to assist you and to provide the evidence to the Court relating to his claim of illness that prevented him from helping you. So but I don't ­ with the exception of that, I just want to get clear from you, that's the only thing that I know of where I thought that he was refusing to assist counsel and I expected and hoped that that would end. And other than your concern about whether he's competent to assist you in the last week, there hasn't been any ­ since then there hasn't been any failure to assist you. That's the answer I'm taking from you to my question. MS. MCMATH: That is correct, Your Honor. And I guess I'd like to revisit the situation a year ago. Your memory may be right. My memory is different. But your memory, in fact, may be the correct one. I know that I did not have any medical records at the time of our status conference last November [sic]. My memory was that he had signed releases and I simply hadn't gotten anything to support his allegations. THE COURT: My memory was that his information [sic] would not communicate with you because he had not authorized his physician to communicate with you. That's my memory, which, of course, could be wrong. MS. MCMATH: His physician certainly would not communicate with me. That I recall. Whether that was with or without a release, I don't recall. (R.T. 10/7/05, pp. 46-48). At a hearing five days later, the Court again raised its perception of Mr. Bryan having deliberately failed to cooperate with counsel and having obstructed progress of the case: THE COURT: And that's what I have been trying to do, but I'm confronted with the defendant obstructing that. Let me state for the record, I'm going to ­ with what I have now, I'm going to make some findings based on what's before me, which is not what I'd like. But first of all, we have a history from a year ago in this case of the defendant Bryan refusing to cooperate with his attorney, claiming illness, and as far as can be shown from the record, refusing to authorize his physician to confirm any of that. And the order I entered last November [sic], I essentially found that and

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directed there be no further delay without substantiation by evidence. So we have a history of this defendant of obstructing trial, by refusing to cooperate and refusing in that case to allow his physician to the corroborate [sic] his claims of illness, or I think it may have been surgery. *** Let me also state for the record some of the substantial harm from this possible self-granted delay of the trial through unilateral behavior by defendant Bryan. This case was originally set for trial, I believe it was, either late in the fall of last year or early in this year, that that is what occasioned Ms. McMath's motion for a trial continuance based on the fact that out of professional responsibility she acknowledged she was not prepared and could not be prepared because her client was not assisting her. And that resulted in the order that I described earlier, which stated it was not well-founded but that no further continuances would be granted absent evidence of the basis and justification for it. (R.T. 10/12/05, pp. 14-16). Because the perception that Mr. Bryan historically obstructed trial preparation by failing to cooperate with and provide medical releases to his counsel and/or by feigning surgery evidently continues to weigh heavily on the Court's mind, it is important to examine the genesis of this conclusion. B. The Basis Therefor

In a Motion to Continue Trial filed on Mr. Bryan's behalf on August 9, 2004 [doc. 35], undersigned counsel set forth the following grounds: (1) incomplete pretrial investigation and trial preparation based primarily on the voluminous discovery materials and the relatively recent appearance of Mr. Bryan and undersigned counsel in the case (without mention of Mr. Bryan's cooperation or lack thereof); and (2) Mr. Bryan's recent neurosurgery, "specifically `a C5-C7 Anterior cervical diskectomy fusion'", as attested by correspondence from Bassam Hadi, MD, attached thereto and to this memorandum as Exhibit "A". According to Dr. Hadi, Mr. Bryan was "unable to travel for at least 6-8 weeks. His recovery and prognosis [had] yet to be determined." (Exhibit A).

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At the status hearing conducted October 4, 2004, at which the above-referenced motion was considered by the Court, the following information was presented by undersigned counsel, who herself unwittingly may have fostered the impression the Court now entertains: MS. MCMATH: Thank you, Your Honor. The Court's aware this is a relatively, if not extraordinary, complex case. *** MS. MCMATH: Thank you, Your Honor. Regrettably, I don't occupy a much different position than you do, Your Honor. And that's in terms of, I ­ originally the Government disclosed 4500 pages of discovery. And I don't know when I got that. I'm estimating in April or May. I have been through that once. And when I talk about "been through that," I mean literally looked through the pages and read many of the documents. Since then, I think the Court's aware my client was released on his own recognizance and lives in Missouri now. I applied to the Court for funding to have the 4500 pages copied and sent to my client so that he and I could have meaningful telephone conferences at a minimum. I also requested the appointment of an investigator to assist me given the volume of this case. The investigator was appointed, I think, June 28th. It then became necessary for me to give my 4500 pages to the investigator so that he and Mr. Bryan and I could meaningfully discuss matters. The way that shook out, Your Honor, is the first truly substantive conversation that I was to have with Mr. Bryan, after having made even a cursory review of the 4500 pages was to have taken place in August of this year. At that time, Mr. Bryan informed me that he was going to be undergoing back surgery. I recognize from conversations with Ms. Adams that there is some dispute or some contention from the Government's position that his medical condition is, in fact, fraudulent, for lack of a better term, and I will address that in a moment. But I certainly ­ I can't tell the Court whether that is true or not. I can only represent what has been represented to me, and that is that our first three-way conference, which was to have taken place in August, did not take place because I was told and given a surgeon's letter that Mr. Bryan had back surgery. And I attached that letter to my last motion to continue. The information that I received at that time was that he would not be able to travel, I think, for approximately eight weeks after that surgery, and that a subsequent surgery was contemplated. In any event, understanding that we needed to at least start communicating as quickly as he was able to physically, we set our next phone conference for sometime in early September. And again, this would have been the first substantive conference the investigator, Mr. Bryan, and myself would have had. I learned rather abruptly that I needed surgery in September. I cancelled that phone conference to meet with my surgeon. It was scheduled, again, a couple

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days later and by then I was in surgery. And today is my first day back. Since that time, since the time of the initial disclosure, that is, I received another box sometime in September. As I indicated, I have been on medical leave most of September. I haven't looked at it yet. It looks to be 1,000 or 2,000 more pages of materials that I need to get copied, distributed, and discuss obviously with Mr. Bryan and my investigator. That's pretty much my situation at the moment, Your Honor, and whatever 404(b) materials come in in the near future need to be addressed as well. I feel very much like a neophyte in this extremely serious, extremely complex case. In discussing the case with Ms. Elm the other day, she indicated to me that it is her estimate that she's spent couple hundred hours thus far with her client and that ­ I don't mean to speak for Ms. Elm, but I think her position is she's not particularly prepared to go to trial in November either, and I have had the benefit of nowhere near that amount of consultation with my client. In addition to the materials the Government has been good enough to copy and distribute to us, I am given to understand that there are some 21 boxes or 25 boxes or something like that of discovery that's in the possession of the agents that is made available to us to review, and obviously I'm not to that stage yet. If I could just address Mr. Bryan's medical issue for a moment. As I indicated, I'm not here to tell the Court whether he had surgery or whether he did not have surgery. It has been represented to me that he did. THE COURT: Have you had communication directly with his surgeon? MS. MCMATH: No, Your Honor. I have a telephone number for his surgeon. I called the individual represented to me to be his neurosurgeon. Either ­ I can't recall if it was just prior to or just after when I was told he had surgery I left a detailed message with the surgeon`s service. I have not received a return call. I subsequently got a letter through my client, who indicated to me that his surgeon doesn't talk to lawyers. That may or may not be true. But I have had no direct contact. I have had nothing to present to the Court other than the letter that I presented. I don't have any medical records which I would candidly concede if he, in fact, had surgery it should be ­ I'm assuming I could get my surgery records from a few weeks ago on a request. So I'm assuming the same is true of his. Unfortunately, since this issue came up, or I learned of the Government's concern that this is fraudulent, I learned about it the day before I had surgery. And as I indicated, I'm just back full time today. So I have had no time to make an effort to find out the legitimacy of that and if it is legitimate, what his prognosis is and when he'll be able to travel. But that issue is out there as well. (R.T. 10/4/04, pp. 12-16).

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Thereafter, government's counsel fueled the fire by interjecting supposition and unsubstantiated, hearsay accusations: MS. ADAMS-FELDMAN: Okay. We had information ­ we received information from an attorney in Chicago, Illinois who had a civil case with Mr. Bryan, and he advised me that Mr. Bryan used the excuse of his health and his back and whatever during that trial, which as some years ago. I don't think we have seen any sound evidence of his health condition. I saw the letter as well. I tried to reach the surgeon. I wasn't able to. So the Government would require, if he seeks an additional continuance, something a little more than a letter through the defendant himself. And that's it, Your Honor. (Id. at 25). From the above discourse, the Court ruled, as follows: If I grant a continuance, my sense is to not allow any further continuance without substantiating evidence from the treating physician. The notion that my lawyer doesn't ­ my doctor doesn't talk to lawyers is unpersuasive to me. Patients are in control of that. So if I grant a continuance, I won't be granting any further continuances absent independent substantiation of Mr. Bryan's health situation. But that only covers one of your two problems. The other problem is your preparation. That is what I'm asking you to speak to. (Id. at 18-19). THE COURT: I am skeptical about the health issues but I'm not skeptical about defense counsel's needs. So I think I see no alternative but to grant a continuance. . . . (Id. at 25). C. The Demonstrable Facts

An integrated reading of the Motion to Continue and the October 4th, 2004 status hearing transcript makes abundantly clear that undersigned counsel's motion was predicated on: (1) her lack of preparedness for trial based on a host of legitimate circumstances without regard to Mr. Bryan's cooperation or lack thereof; and (2) Mr. Bryan's medical situation, which undersigned counsel lacked sufficient opportunity to investigate since learning that its legitimacy was questioned and prior to the hearing, as the result of undersigned counsel's own unexpected surgery. The record simply does not support this Court's more recent pronouncement "that that

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is what occasioned Ms. McMath's motion for a trial continuance based on the fact that out of professional responsibility she acknowledged she was not prepared and could not be prepared because her client was not assisting her." (R.T. 10/12/05, pp. 15-16). (Emphasis added). Neither can the Court's Order of October 12, 2004 fairly be characterized as stating that the requested continuance "was not well-founded." (R.T. 10/12/05, p. 16). (Emphasis added). Rather, this Court previously found specifically that the request for continuance was well-founded based on undersigned counsel's lack of preparedness for trial. (R.T. 10/4/04, p. 25). Moreover, no evidence exists in the record to support the conclusion that Mr. Bryan failed to cooperate with undersigned counsel, failed to sign necessary medical releases, or feigned his surgery to obstruct trial preparation. At the time of filing the Motion to Continue, undersigned counsel provided the Court with a letter from Mr. Bryan's surgeon attesting to his surgery. (See Exhibit A). It was only in a subsequent phone conversation immediately prior to undersigned counsel's unplanned medical leave that she learned of the government's vague, unsubstantiated suspicions that Mr. Bryan's claimed surgery was a sham. In addition to Exhibit A, the Court now has available to it Mr. Bryan's signed medical release authorizing Dr. Bassam Hadi to release records of Mr. Bryan's surgery to undersigned counsel (Exhibit "B")1 and the surgery records themselves (Exhibit "C"). Mr. Bryan indisputably had a "C5 to C7 anterior cervical diskectomy" on August 2, 2004, as he reported. (Id.)

Subsequent to the status hearing, undersigned counsel learned that releases Mr. Bryan previously had executed were not honored by Dr. Hadi or the St. John's Spine Center at which he works because they were not executed on HIPPA-compliant release forms required by St. John's. It was only after returning from her medical leave, attending the referenced status hearing, and learning of the deficient medical releases that undersigned counsel prepared a HIPPAcompliant release for Mr. Bryan to execute to his surgeon to dispel the government's continued, baseless aspersions and to assuage the Court's concerns based thereon. Therefore, Exhibit B is dated October 18, 2004. Prior to the government's unpredicted challenge, undersigned counsel believed that Exhibit A sufficiently substantiated Mr. Bryan's surgery, recovery time, and prognosis. In any event, Mr. Bryan unhesitatingly executed Exhibit B and releases to other health care providers in favor of undersigned counsel without any hint of resistance.

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Under these circumstances, it simply would be unfair to conclude that Mr. Bryan obstructed trial preparation by refusing to cooperate with his counsel, refusing to sign necessary medical releases, fabricating a medical condition and/or occasioning a meritless trial continuance in conjunction with the October 4, 2004 status hearing. III. Mr. Bryan's Out-of-State Relocations A. The Court's Findings

On November 28, 2005, this Court entered an Order, finding, inter alia, that: Defendant recently relocated to Dallas, Texas, without prior permission of Pretrial Services . . . . The new plans to relocate to Florida were not disclosed to Pretrial Services until after they were made. [doc. 209] B. The Basis Therefor

The stated basis for the Court's findings in this regard is "the Supplemental Report of U.S. Pretrial Services dated November 22, 2005", which reads, in pertinent part: The defendant is supervised by U.S. Pretrial Services Officer, Jake Vasquez, in the Northern District of Texas. The defendant relocated to the Northern District of Texas in September 2005, from the Western District of Missouri, without prior notification of the Court or Pretrial Services. The undersigned was notified of the defendant's move on September 28, 2005. . . . On November 14, 2005, the undersigned was notified by Officer Vasquez that the defendant had secured a residence in Davie, Florida, and would relocate to the Southern District of Florida on November 28, 2005. This officer notified Officer Vasquez the defendant was required to seek permission from the Court regarding travel outside of the District of Arizona, other than to Dallas, Texas. *** Pretrial Services has several concerns regarding the defendant's move to the Southern District of Florida. Neither the defendant nor defense counsel notified Pretrial Services until arrangements to relocate had been secured. Pretrial Services in the Northern District of Texas is providing courtesy supervision of the defendant for the District of Arizona, and does not have jurisdiction regarding modification of the defendant's release conditions. . . . *** Pretrial Services has concerns regarding the defendant's risk of nonappearance due to his un-authorized relocation from Missouri to Texas in September 2005, and his

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intention to move to Florida without consent of the Court or Pretrial Services. ... (U.S. Pretrial Services, District of Arizona, Supplemental Report of Sunny R. Cieluch, dated November 22, 2005). C. The Demonstrable Facts

Attached hereto as Exhibits "D" and "E", respectively, are correspondence from Mr. Bryan's supervising probation officer while living in Springfield Missouri, Claudia Allison, and a memorandum of telephone conversation with his present supervising probation officer in Dallas, Texas, Jake Vasquez.2 Regarding Mr. Bryan's relocation from Missouri to Texas, Ms. Allison writes: I began supervising Mr. Bryan on March 8, 2004. He maintained contact with me by phone on a weekly basis, reporting any and all changes that might be occurring with his status. On September 20, 2005, the defendant contacted me and stated that he and his family would like to relocate to Dallas, TX to be closer to family and his wife's job. He stated that if they did this that they would like to do it at the end of the month. I told him to keep me posted and that I would contact the charging district when he provided an address that they would be moving to in Dallas. I also told him to contact the charging district to let them know of his plans. However, he did not have a particular contact person. On September 27, 2005, the defendant reported a new address and phone number in Dallas, TX where he and his family would be residing. On the morning of September 28, 2005, I e-mailed Pretrial Services Officer Sunny Cieluch to make her aware of the defendant's impending move and provide her with his future address and phone number. On September 29, Pretrial Services Officer Jennifer Coalson of Dallas, TX contacted me and stated that she had been assigned the defendant's case for courtesy supervision in Dallas, TX. She requested my chronological record and I faxed her the information she needed. On September 30, 2005, PTSO Sunny Cieluch stated that the defendant had been officially relocated to Dallas, TX, that she had requested supervision by the Dallas office and that I could close my interest in this case. On that same date, I closed my file in reference to this defendant. (Exhibit D).

Mr. Vasquez indicated that he would have a memorandum or correspondence prepared for inclusion with this memorandum, but none has been received as of this writing. Upon receipt of such memorandum or correspondence directly from Mr. Vasquez, it will be substituted for Exhibit E hereto.

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Similarly, in regard to Mr. Bryan's contemplated relocation from Texas to Florida, Mr. Vasquez amplified: Contemplated Move to Florida ­ Jake said the reasons the Bryans wanted to relocate to Florida are: Jill's Dallas assignment expired on 11-04-05, Jill could make more money in Florida, and Jill has family support in Florida. The Bryans proposed this relocation plan, Jake then notified Arizona, the court of jurisdiction, about the proposed plan and Arizona denied based on the supposedly nonauthorized move from Missouri to Dallas. Jake was surprised to hear that the Dallas move was not taken well by the Arizona PTS office. Jake had first contact with Bryan on October 6, 2005 and his records don't reflect an unauthorized move. (Exhibit E, ¶ 2). It is thus clear from a balanced reading of the above reports from Mr. Bryan's day-to-day supervising Pretrial Services Officers that he was complying with the spirit, if not the letter, of Pretrial Services directives regarding relocations. In both cases, his day-to-day supervising officer was apprised in advance of the planned move. Mr. Bryan believed that he was complying with directives provided to him both by Ms. Allison and Mr. Vasquez by notifying them first of the proposed move and then of a proposed address. Mr. Bryan then expected the courtesy supervising Pretrial Services Officer to clear the proper channels with Pretrial Services in Arizona. Prior to the relocation to Texas, Mr. Bryan had not been provided with the name or number of a contact officer in Pretrial Services in Arizona.3 Under these circumstances, it would be unfair and inaccurate to reflect that Mr. Bryan's relocation from Missouri to Texas and contemplated relocation from Texas to Florida was "without prior notification of the Court or Pretrial Services." He, in fact, notified "Pretrial Services" in the districts of his courtesy supervision, albeit not Pretrial Services in Arizona (which he understood would be contacted by his immediate supervisors). He simply did not understand the intricacies and nuances of courtesy supervision by Pretrial Services in one district vis-a-vis legal jurisdiction over his release conditions in another

Undersigned counsel avows that Mr. Bryan indicated that his first awareness that Ms. Cieluch was his record Pretrial Services Officer in Arizona was when he and undersigned counsel were so informed in the Phoenix office on the date of his self-surrender on October 17, 2005.

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district. To condemn Mr. Bryan for this oversight would amount to an unjust elevation of form over substance. IV. Other Representations in Ms. Cieluch's Supplemental Report A. The Court's Findings

Again, adopting Ms. Cieluch's Supplemental Report, the Court additionally found that "Defendant recently relocated to Dallas, Texas, . . . and later assured the Court that no further relocation was anticipated." [doc. 209] B. The Basis Therefor

This finding of the Court presumably is predicated on the following repeated representations in Ms. Cieluch's Supplemental Report: On September 29, 2005, Pretrial Services spoke with both the defendant and his wife, Jill Bryan, to inquire if Dallas, Texas, was going to be their permanent residence until completion of the defendant's case. Both Mrs. Bryan and the defendant stated there would be no additional relocations. *** . . . Furthermore, in speaking with the defendant and his wife on September 29, 2005, after moving from Missouri to Texas without consent from the Court or Pretrial Services, Pretrial Services stressed the importance of a stable residence and inquired specifically if any future moves were anticipated. Both the defendant and his wife advised there would be no additional moves. Mrs. Bryan expressed Dallas offered employment stability and familial support, should the defendant be sentenced to prison time. *** . . . The defendant reported on September 29, 2005, there would be no additional moves, as the defendant's wife's family resides in Dallas, Texas, and there was employment opportunities available to the defendant's wife there. Yet, on November 14, 2005, the defendant reported to Officer Vasquez, his family anticipates relocating to Davie, Florida, on November 28, 2005. . . . (U.S. Pretrial Services, District of Arizona, Supplemental Report of Sunny R. Cieluch, dated November 22, 2005). C. The Demonstrable Facts

Attached hereto as Exhibit "F" are Mr. Bryan's Vonage home phone records capturing all incoming and outgoing calls from September 15, through October 15, 2005. During this time

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frame, Mr. Bryan was unemployed and served as a stay-at-home father for his young daughter. He had no personal cell phone. Therefore, his only phone access was through his home phone. As reflected in Exhibit F, no calls whatsoever were made from or placed to Mr. Bryan's phone number on September 29, 2005, the date on which Ms. Cieluch asserts that "Pretrial Services" spoke with Mr. Bryan and his wife and obtained assurances from them of no further relocations. In fact, no calls to or from Pretrial Services in Arizona appear anywhere in this 30-day time frame. (Exhibit F).4 Mr. Bryan categorically denies ever having spoken to Ms. Cieluch in person or on the phone, as the attached phone records bear out, much less having made the curiously-detailed representations attributed to him by Ms. Cieluch. In short, Mr. Bryan asserts that Ms. Cieluch's representations in this regard, like many others advanced in her Supplemental Report,5 are demonstrably false.6 V. Stewart PSR Objections Undersigned counsel feels compelled to comment briefly on the Objections to Draft Presentence Report recently filed on behalf of Co-defendant Sharen Stewart [doc. 245] ("Stewart PSR Objections"). Evidently, Ms. Stewart continues to minimize her conduct and shift blame to

A six-minute phone call was placed from Mr. Bryan's residence to Mr. Vasquez at Pretrial Services in Texas on October 11, 2005 at 1:52 p.m. (Exhibit F); however, Mr. Vasquez flatly denies having received assurances from Mr. Bryan regarding future relocation plans. (Exhibit E, ¶ 5). By way of example, elsewhere in her report, Ms. Cieluch represents that "Mr. Vasquez is currently attempting to retrieve the defendant's mental health records." Mr. Vasquez denies making such an attempt. (Exhibit E, ¶ 4). Unlike Mr. Bryan, his wife, Jill Bryan, does recall speaking to someone from Pretrial Services in Arizona whom she now believes to be Ms. Cieluch sometime around the time of the Bryans' relocation to Texas. This call took place over Ms. Bryan's work cell phone; therefore, phone records presently are unavailable. Ms. Bryan denies any discussion took place regarding future relocations or assurances regarding same during this call.
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everyone conceivable, portraying herself as the true victim of Mr. Bryan, Mr. Miller, the brokers, and victim investors, inter alia. It bears stressing that the "factual" recitation regarding Ms. Stewart's relationship with Mr. Bryan is a one-sided, self-serving narrative by Ms. Stewart herself, largely uncluttered by record references to the voluminous discovery materials.7 This is because the lion's share of her present assertions enjoy no support anywhere in the objective record. (See, e.g., Stewart PSR Objections, p. 8, ll. 7-8 ("Among other `background checks' Stewart also checked the `Diligizer Board' which posts private traders information on the internet.")) Apparently, Ms. Stewart would have this Court believe that she is guilty of nothing more than "simply panick[ing] and instead of directly informing her client's [sic] of Bryan's theft and refunding the remaining funds in her possession, . . . continu[ing] to use these funds for her own personal and company expenses." (Id. at 10, ll. 17-20). It suffices to observe that this unilaterally skewed, revisionist history wholly fails to account for the fact that, while the last payment to Bryan's account and Stewart's apparent loss of contact with him occurred in August, 2000, Ms. Stewart's lulling correspondence to the brokers and victim investors transpired from approximately July 21, 2000 until at least May 20, 2002. (Bates # 4020-4081). All but two were written after she and Mr. Bryan lost contact. Unaided by Mr. Bryan, Ms. Stewart deceived the victim investors with bogus assurances that "[t]he first tranche did close and money did move yesterday" (Bates # 4061), inter alia, virtually ad infinitum. Neither does Ms. Stewart's version of events account for the fact that the majority of the funds invested by the victim investors remained in her

The sparse citations to the record which do appear are misleading by omission. For example, in support of her assertion that, "[d]uring this time period, Bryan continued to assure Stewart that trades were being conducted leading her to believe that she and her investors would realize substantial returns on their funds", Ms. Stewart cites to "Salutz memo (2/26/03) #4582". (Stewart PSR Objections, p. 7, ll. 1-4 & fn. 2). However, the referenced information contained in that memo itself explicitly derived from Ms. Stewart's own deposition on January 14, 2002 in Vizantia-Exclusive, Ltd. v. Kristar, Inc. (Bates # 4582).

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accounts, rather than being transferred to Mr. Bryan for him to conduct what she perceived to be legitimate trading. Moreover, the discovery materials are replete with information regarding other investment scams being perpetrated by Ms. Stewart during the same time frame independent of her relationship with Mr. Bryan which likely accounts for the other $5.1 million dollars which wound up in her accounts which was not transferred there by the named victim investors. VI. Conclusion Unlike Ms. Stewart, Mr. Bryan has accepted full responsibility for his conduct in this case. (PSR, ¶¶ 40-44). He asks only that he be sentenced on the crime to which he pled guilty uninfluenced by misinformation supplied by third parties seeking to vilify him to further their own self-serving interests. 18 USC § 3553(a) directs that, in sentencing Mr. Bryan, the Court consider his "history and characteristics." Mr. Bryan is a decorated veteran of the Vietnam War who served his country admirably. Coincidentally, while Mr. Bryan was pending sentencing, he recently received a Certificate of Recognition from the Department of Defense attached hereto as Exhibit "G", in addition to the previously bestowed decorations, medals and awards identified in paragraph 94 of the PSR. As a result of his military service, Mr. Bryan now suffers from, and receives treatment for, Post-Traumatic Stress Syndrome. (PSR, ¶¶ 85, 87-88). Finally, Mr. Bryan has expressed extreme, sincere remorse for his criminal wrongdoing and the resulting financial loss suffered by the victim investors. (PSR, ¶ 44). Based on all of the above, Mr. Bryan respectfully requests that the Court follow the terms of his Plea Agreement, determine his appropriate Total Offense Level to be 18, with a Criminal History Category I, and thereafter to impose a sentence at the low end of the applicable guideline range of 27 months, as recommended by the government in ¶ 2(a)(6) of the Plea Agreement. Additionally, Mr. Bryan requests that the Court permit him to remain at liberty and to selfsurrender to the designated Bureau of Prison facility at the appropriate time for service of his sentence. In this regard, Mr. Bryan would direct the Court's attention to the fact that he "has

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reportedly been in compliance with his conditions of release." (PSR, ¶ 5). (See also Exhibits D and E). Finally, Mr. Bryan requests that the Court recommend designation in the Southeastern region of the United States, preferably in the Southern District of Florida where his wife and young daughter will be residing, and permit him to relocate to that district or, alternatively, to travel freely between the Northern District of Texas where he currently resides and the Southern District of Florida to help establish his family there pending his surrender to the designated Bureau of Prisons facility. Respectfully submitted this 30th day of March, 2006. By _/s/ Tonya J. McMath Tonya J. McMath Attorney for Defendant Copy of the foregoing filed/delivered via the CM/ECF system this 30th day of March, 2006 and delivered to the following ECF registered recipients: Michelle R. Hamilton 40 North Central, Ste. 1200 Phoenix, AZ 85004 Paul V. Rood 40 North Central, Ste. 1200 Phoenix, AZ 85004 By /s/ T. McMath

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