Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona STEPHEN W . LARAMORE JOHN R. LOPEZ, IV Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona States Bar No. 017218 Arizona State Bar No. 019182 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America,

10 Plaintiff, 11 v. 12 Jeanette B. Wilcher, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CR-03-1098-PHX-EHC GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT AND OPPOSITION TO REQUEST FOR DOWNWARD DEPARTURE

The United States, through undersigned counsel, hereby responds in opposition to Defendant's Objections to Presentence Report and Request for Downward Departure. I. SENTENCING ENHANCEMENTS Defendant urges the Court to categorically reject each sentencing enhancement applied in the presentence report because the jury did not find the enhancements beyond a reasonable doubt. In support of this position, Defendant relies primarily on United States v. Dupas, 419 F.3d 916 (9 th Cir. 2005). Defendant's argument fails because the Ninth Circuit has clarified that Dupas does not require a jury finding to support a sentencing enhancement, nor does it require application of the reasonable doubt standard. The Ninth Circuit, and other appellate courts, have held repeatedly that United States v. Booker, 523 U.S. 220 (2005), allows a district court ­ as distinct from a jury ­ to find facts necessary to determine the Guideline range. See, e.g., United States v. Mix, 2006 WL 2268636 *7 (9 th Cir. Ariz.) ("We also held in Dupas [419 F.3d at 919] that the advisory Guidelines remedy in Booker `gives the sentencing judge discretion to sentence outside the guideline range, but still

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allows the sentencing judge (as distinct from a jury) to make the findings of fact necessary to determine the guideline range in the first place.'"); United States v. Staten, 450 F.3d 384, 392-93 (9 th Cir. 2006) ("[W]hile the preponderance of the evidence standard will generally satisfy due process concerns, a heightened burden may sometimes be imposed."; "[W]here an extremely disproportionate sentence results from the application of an enhancement, the government may have to satisfy a clear and convincing standard."); United States v. Dare, 425 F.3d 634, 642 (9 th Cir. 2005) ("As a general rule, the preponderance of the evidence standard is the appropriate standard for factual findings used for sentencing."); United States v. Crockett, 435 F.3d 1305, 1318-19 (10 th Cir. 2006) ("Furthermore, we had held that the correct standard for findings under the [advisory] Guidelines is the preponderance of the evidence.") The Ninth Circuit has expressly interpreted Booker, as well as Dupas, to allow a district court to make factual findings to support sentencing enhancements. Moreover, the Ninth Circuit has reaffirmed that the preponderance of the evidence standard is the appropriate standard for factual findings used for sentencing unless the sentencing factor has an "extremely disproportionate effect," which may require a clear and convincing standard. While the Ninth Circuit has required a heightened clear and convincing standard where the sentencing factor has an "extremely disproportionate effect," under no circumstance has it suggested that the reasonable doubt standard apply to sentencing enhancements. Accordingly, the government respectfully requests that the Court deny Defendant's objection to application of sentencing enhancements because the Ninth Circuit does not require that a jury find a sentencing enhancement, nor does it require a finding beyond a reasonable doubt. II. DOWNWARD DEPARTURE Defendant moves for a downward departure based upon (1) age, family and community ties; and (2) because the offense of conviction allegedly overstates the offense conduct. For the following reasons, the government requests that the Court deny Defendant's request for downward departure. 2

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A. Age, Family and Community Ties Defendant urges the Court to grant a downward departure based, in part, on her age ­ 61 years, ­ as well as the fact that she maintains relationships with her adult children and has friends in the community. The government submits that Defendant's age does not support a downward departure. The evidence in this case demonstrates that Defendant is a reasonably healthy, intelligent and active person. Defendant is not infirm, nor does her age lessen the economic threat she presents to the public. Defendant's age does not warrant a downward departure. Similarly, Defendant's relationship with her adult children is irrelevant to determining an appropriate sentence. Defendant does not contend that her children are dependant upon her, nor does she present any other unique family circumstance. The government submits that her family situation does not support a downward departure. Finally, Defendant submits several letters of support from family and close friends in "ministry work." These letters provide that Defendant's family and friends believe that she is an honest, spiritual and decent person. While Defendant's family and friends undoubtedly have great affection for her, these letters also demonstrate that Defendant has concealed her pervasive criminal conduct from her family, friends and colleagues. While the government concedes that Defendant's friends and family support her, this support does not mitigate Defendant's criminal conduct, nor does it justify a downward departure. B. Offense Conduct Defendant asserts, without citation to any authority, that application of the money laundering statutes and guidelines to her case "artificially inflates and distorts the offense conduct." On this basis, Defendant requests that the Court grant a significant downward departure. Although Defendant argues that application of the money laundering statutes to this case generates a severe penalty, she does not dispute that the statutes were lawfully applied.

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Defendant's policy-based objections to legislative expansion of the money laundering statutes simply do not support a downward departure. Defendant's request for a downward departure is also belied by the evidence. Defendant, acting through third parties, defrauded an elderly investor of $3.3 million. Defendant moved the defrauded funds through several bank accounts, distributed funds to third parties in furtherance of the fraud scheme, and diverted funds to purchase real estate. In furtherance of the scheme, Defendant also produced a series of fabricated trading schedules. Defendant's money laundering conviction is appropriate under the law and warrants application of the money laundering Guidelines. Defendant's request for a downward departure is further undermined by her significant prior history of fraud and economic harm to the community. First, Defendant has been indicted for devising and executing a multi-million dollar stock fraud scheme related to the instant case. (PSR ¶ 40.) Second, civil judgments in excess of $23 million have been issued against Defendant. (PSR ¶ 56.) Finally, Defendant has been the subject of other civil litigation and allegations of economic fraud for years. (PSR ¶¶ 57-75.) The government requests that the Court deny Defendant's motion for downward departure because she has failed to offer a cognizable basis for relief. Her criminal conduct in this case, standing alone, warrants the recommended Guideline sentence. Moreover,

Defendant's lengthy history of economic fraud and dishonesty further justifies the recommended Guideline sentence and undermines her attempt to minimize her role in the present case. III. CONCLUSION The government respectfully requests that the Court (1) deny Defendant's objection to presentence report and (2) deny Defendant's motion for downward departure.

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Respectfully submitted this _____ day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Stephen W. Laramore STEPHEN W. LARAMORE Assistant U.S. Attorney /S/ John R. Lopez IV

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 JOHN R. LOPEZ, IV Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on August ___, 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: Deborah Euler-Ajayi Asst. Federal Public Defender 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007 Attorney for Defendant / S/ JOHN R. LOPEZ IV

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