Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2700 5 DEBORAH L. EULER-AJAYI AZ State Bar No. #010537 6 Asst. Federal Public Defender [email protected] 7 Attorney for Defendant 8 9 10 11 12 13 14 15 16 v. Jeanette Wilcher, Defendant. Jeanette Wilcher, by and through undersigned counsel, hereby moves for United States of America, No. CR03-1098-PHX-EHC Plaintiff, MOTION FOR RELEASE PENDING APPEAL AND FOR STAY OF SENTENCE OF IMPRISONMENT IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

17 release pending sentencing, pursuant to 18 U.S.C. § 3143(b) and for stay of the 18 sentence of imprisonment, pursuant to Fed. R. Crim. P. 38(b)(1). Sentencing is set 19 for November 13, 2006, but the presentence report has been prepared and 20 recommends a sentence of 97 months imprisonment. An appeal will be filed. Mrs. 21 22 Wilcher meets the criteria for continued release pending appeal pursuant to 18 U.S.C. 23 24 25 26 27 28

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1 § 3143(b), and thus requests her continued release. This motion is supported by the 2 attached memorandum of points and authorities. 3 Respectfully submitted: November 1, 2006. 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
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JON M. SANDS Federal Public Defender

s/Deborah Euler-Ajayi DEBORAH L. EULER-AJAYI Asst. Federal Public Defender

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1 2 I. 3 4 5 6 7 Procedural History

MEMORANDUM

Mrs. Wilcher was found guilty by a jury of wire fraud, in violation of 18

U.S.C. § 1343; promotional money laundering, in violation of 18 USC § 1956(a)(1)(A)(i); and transactional money laundering, in violation of 18 USC § 1957. Sentencing is set for November 13, 2006, and the presentence report recommends a

8 sentence of 97 months of imprisonment followed by three years of supervised release. 9 A notice of appeal will be filed after sentencing. 10 The indictment in this case was filed in October 2003. Mrs. Wilcher 11 was detained for two months and then released to the third party custody of her son, 12 with pretrial supervision and electronic monitoring. This Court subsequently 13 removed the monitoring condition. Over the next three years, while this case was 14 pending, she complied with all terms of her pretrial supervision, she has maintained 15 16 contact with her lawyer, and she has been present for all court appearances including 17 trial and post-trial hearings. 18 II. 19 20 21 22 23 24 25 26 27 28 (B) (A) The Law A defendant shall be released pending appeal if the Court finds: by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) [of the Bail Reform Act]; and that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in ­ (i) (ii) (iii) reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or
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1 2

(iv)

a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

3 18 U.S.C. § 3143(b)(1). The Court shall order a defendant detained if the offense 4 involves one of the offenses described in 18 U.S.C. § 3142(f)(1)(A), (B), or (C) and 5 the defendant is sentenced to a term of imprisonment. This case does not involve an 6 offense described in that statute. Lastly, the Court must stay a sentence of 7 8 imprisonment if the defendant is released pending appeal. Fed. R. Crim. P. 38 (b)(1). 9 III. 10 Application Mrs. Wilcher is not a flight risk or a danger to the community, and thus

11 she meets the criteria for release under § 3143(b)(1)(A). She has been released for 12 three years, awaiting trial. She has complied with all conditions of release and 13 appeared for court as requested. She does not possess firearms, and she does not have 14 a drug or alcohol abuse problem that might pose a risk to the community. She 15 16 surrendered her expired passport to this Court, and the government has confirmed 17 that she does not hold a current passport. This case does not involve a crime of 18 violence. 19 The defense is not filing an appeal for the purpose of delay. Rather, the 20 appeal will present several substantial questions of law or fact that are likely to result 21 in a new trial. Although defense counsel has not yet had the opportunity to review 22 the record closely for appeal, she expects to raise at least the following issues: (1) the 23 Court's refusal to give a special verdict form requiring the jury to specify what false 24 25 promise or statement was made ­ an element of wire fraud; (2) insufficiency of the 26 evidence of specific intent ­ an element of wire fraud and money laundering; (3) the 27 Court's refusal to allow the defense to redepose the victim, and its denial of the 28 motion for mistrial based on that ruling; and (4) the Court's denial of the motion for
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1 mistrial based on the victim's deposition testimony relating to the civil litigation that 2 preceded this case. The defense also may raise issues regarding the imposition of 3 sentence. Taken as a whole, these issues (among others which may be revealed by 4 5 6 7 8 10 IV. 11 12 13 14 15 16 17 18 19 20 21 22 Copy of the foregoing transmitted by ECF this 1st day of November, 2006, 23 to: 24 Clerk's Office 25 United States District Court Sandra Day O'Connor Courthouse 26 401 W. Washington Phoenix, Arizona 85003 27 28
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a full review of the trial record) resulted in an unfair trial. If the Court of Appeals finds error in the rulings on these issues, in whole or in part, then Mrs. Wilcher most likely would receive a reversal of the convictions and a new trial. Defense counsel has contacted Assistant United States Attorney John

9 Lopez regarding release pending appeal, and he opposes this motion. Conclusion For all of the reasons cited above, defendant respectfully requests that this Court issue an Order that defendant be released pending appeal and that the sentence of imprisonment be stayed pending appeal. Respectfully submitted: November 1, 2006. JON M. SANDS Federal Public Defender

s/Deborah Euler-Ajayi DEBORAH L. EULER-AJAYI Asst. Federal Public Defender

1 John Lopez/Stephen Laramore Assistant U.S. Attorneys 2 Two Renaissance Square Central 3 40 North Arizona Ave., Ste. 1200 Phoenix, 85003 4 5 Mark Nebgen 6 United States Probation Sandra Day O'Connor Courthouse 7 401 W. Washington, Suite 160 8 Phoenix, Arizona 85003 9 Jeanette Wilcher Defendant 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Copy delivered to:

s/Kathy Kruckeberg K. Kruckeberg 12