Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona MICHELLE HAMILTON-BURNS Assistant U.S. Attorney Arizona State Bar No. 010269 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-03-1269-PHX-NVW Plaintiff, v. Sharen Stewart, a.k.a. Sherry Stewart, d.b.a. Prime Resources Consulting, LLC, a.k.a. PRC, Paul K. Bryan, a.k.a. Lyle Edward Goeringer, d.b.a. Bryan Group International, Defendants. The United States Government, by and through its attorney, the United States Attorney for the District of Arizona, herein responds to defendant Bryan's Objections to Draft Presentence Report. It is expected that excludable delay pursuant to 18 U.S.C. 3161(h)(1)(F) will occur as a result of this motion or an order based thereon. Respectfully submitted this 28 th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S Michelle Hamilton-Burns MICHELLE HAMILTON-BURNS Assistant U.S. Attorney RESPONSE TO OBJECTIONS TO DRAFT PRESENTENCE REPORT FILED BY DEFENDANT BRYAN

Case 2:03-cr-01269-NVW

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The government does not take a position with respect to defendant's objections under the Facts, Criminal History and Financial Condition headings of the PreSentence Report, as they are factual in nature and the government is not in a position to verify or dispute the facts asserted by defendant in his objections. The government agrees, however, with defendant's final objection to the Offense Level Computation, specifically the application of a two-level upward adjustment to defendant Bryan's guideline for abuse of trust, pursuant to U.S.S.G. §3B1.3. Section 3B1.3 provides a two level increase if the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense. Application Note 1 reads as follows: Public or private trust refers to a position of public or private trust characterized by professional or managerial discretion. (I.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant's responsibility for the offense more difficult). This adjustment, for example, applies in the case of an embezzlement of a client's funds by an attorney serving as a guardian, a bank executive's fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors. In the instant case, neither Stewart nor Bryan worked within a company or organization

18 that conferred a title or responsibilities that would tend to bestow confidence in their customers. 19 In fact, in many cases the investors dealt directly with an independent broker. Also, the investors 20 were more financially sophisticated than the general public. 21 The application of the abuse of trust enhancement can not be based upon proof that the 22 23 1998) For the adjustment to apply, "the position of public or private trust must have contributed 24 in some significant way to facilitating the commission or concealment of the offense." United 25 26 ambiguous, the "rule of lenity requires that [we] infer the rationale most favorable to 27 28 States v. Hoskins, 282 F.3d 772, 778 (9 th Cir. 2002) When the application of a guideline is defendants were personally trusted. United States. v. Oplinger, 150 F.3d 1061, 1068 (9 th Cir.

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[defendants] and construe the guidelines accordingly. United States v. Technic Services, 314 F.3d 1031, 1050 (9 th Cir. 2002): United States v. Helmy, 951 F.2d 988, 996 (9 th Cir. 1992) The government stipulated in the defendants' plea agreements that the adjustment not apply, and did so based upon the ambiguity associated with the position that the defendants held with respect to the victims in this case. The government bears the burden of proof when seeking an upward adjustment under the United States Sentencing Guidelines. United States v. Ameline, 409 F.3d 1073, 1086 (9 th Cir. 2005) In conclusion, the stipulation in the plea agreement that the abuse of trust enhancement not apply was reasonable based upon the facts and circumstances of this case, and therefore, this court should sustain the defendant's objection to the enhancement. Respectfully submitted this 28 th day of March, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona /S Michelle Hamilton-Burns MICHELLE HAMILTON-BURNS Assistant U.S. Attorney

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S/ Michelle Hamilton-Burns Patricia Gitre 331 North First Avenue, Suite 150 Phoenix, AZ 85003-0001 Tonya McMath 111W est Monroe, Suite 1650 Phoenix, AZ 85003-1736 I hereby certify that on March 28, 2006, 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:

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