Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams Street, Suite 201 3 Phoenix, Arizona 85007 4 Telephone: (602) 382-2700 5 DEBORAH EULER-AJAYI State Bar No. 010537 6 Asst. Federal Public Defender Attorney for Defendant 7 [email protected] 8 9 10 11 12 13 14 15 16 -vsJeanette B. Wilcher, Defendant. Jeanette Wilcher, through undersigned counsel, hereby files her United States Of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR-03-1098-PHX-EHC OBJECTIONS TO PRESENTENCE REPORT AND REQUEST FOR DOWNWARD DEPARTURE

17 objections to the presentence report and requests a downward departure for the 18 following reasons. Letters from friends and family members, which support the 19 request for departure, have been separately forwarded to probation, the government 20 and to chambers. 21 22 23 24 25 26 28 I. Factual Corrections. A) Paragraph 10. The defense requests an addition to this paragraph, of the following information. Ms. Pfurtscheller deposited the $25,000 and then paid it to First American Title, solely because her mother was ill at that time. B) Paragraph 42. Mrs. Wilcher is the first (not second) of four

27 children born to Jennings Gatlin and Mary Garcia.

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C) Paragraph 44. Mrs. Wilcher has lived in Phoenix since 1991.

2 Previously she also lived in San Francisco, Los Angeles, the Washington D.C. and 3 Virginia area, Minnesota, Austria, Toronto, various parts of Europe (including 4 England, France, and Switzerland). 5 6 7 8 9 10 11 D) Paragraph 47. In January 2004, Mrs. Wilcher was injured when a number of iron pipes fell on her while in her son Damien's storage unit. She sustained multiple injuries to the left side of her body. Her left leg was crushed but not broken, and one finger on her left hand was partially amputated. She still experiences intermittent pain in the left leg and finger. E) Paragraph 58. Mrs. Wilcher's 1992 bankruptcy, in Minnesota,

12 was a business/farm bankruptcy. II. Enhancements. The presentence report recommends a variety of 13 14 specific offense characteristics. Specifically, as to Count 1, a total of 21 points were 15 added to the base offense level of six (6). As to Counts 2-7, five (5) points were 16 added to the base offense level of 23. Since the jury did not receive a special verdict 17 form, and thus did not find these enhancements beyond a reasonable doubt, the 18 recommended enhancements are improper as a matter of law. 19 20 21 22 23 24 The government bears the burden of proof when seeking sentencing enhancements. United States v. Ameline, 409 F.3d 1073, 1086 (9th Cir. 2005). Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt.

25 United States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming Apprendi, holding 26 that other than the fact of a prior conviction, any fact necessary to support a sentence 27 exceeding the maximum authorized by the facts established by a plea of guilty or a 28
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1 jury verdict must be admitted by the defendant or proved to a jury beyond a 2 reasonable doubt). 3 Numerous courts have addressed the issue of what standard of proof 4 should apply at sentencing, but no clear consensus has been reached. Thoughtful 5 decisions have, however, issued from district courts throughout the country. For 6 example, in United States v. Pimental, 367 F.Supp.2d 143 (D.Mass.2005), the Hon. 7 Nancy Gertner held that the reasonable doubt standard should apply in light of the 8 inordinate importance of facts like the amount of loss, in the sentencing outcome. 9 . . . the principal decision in that case [Booker] and those 10 that had foreshadowed it reflected the Court's new concern with the formal procedures for determining facts essential 11 to sentencing. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even if the Sixth Amendment's jury trial guarantee is not directly implicated because the regime is no longer a mandatory one, the Fifth Amendment's Due Process requirement is. . . .Certain facts are significant, whether or not they play a dispositive role. See, e.g., United States v. Huerta-Rodriguez, 355 F.Supp.2d 1019, 1027 (D.Neb.2005) (finding that [i]n order to comply with due process in determining a reasonable sentence, this court will require that a defendant is afforded procedural protections under the Fifth and Sixth Amendments in connection with any facts on which the government seeks to rely to increase a defendant's sentence"); id. at 1027 n. 8 ("This approach may not be mandated by Booker, but it is not inconsistent with, nor prohibited by, Booker."). 367 F.Supp.2d at 153. Similarly, in United States v. Siegelbaum, 359 F.Supp.2d 1104 (D.Or. 2005), the Hon. Owen Panner discussed three historical Supreme Court decisions that stressed the importance of the reasonable doubt standard. The Supreme Court has acknowledged that the standard of proof can significantly impact fact finding accuracy and society's confidence in the result. In re Winship, 397 U.S. 358, 363 (1970) ("The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It
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is a prime instrument for reducing the risk of convictions resting on factual error") and at 364 (the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law); Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (purpose of reasonable doubt standard is to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"); Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift burden of proof to defendant). Winship, Ivan V., and Hankerson pre-date the retroactivity standard announced in Teague. Those decisions also concerned the validity of the underlying conviction, rather than a sentence enhancement. On the other hand, at least five Justices have said that sentence enhancements are of sufficient importance to warrant application of the reasonable doubt standard in some instances. [citations omitted] 359 F.Supp.2d at 1107-1108 (emphasis added). The Ninth Circuit, in United States v. Dupas, 417 F.3d 1064, n. 5 (9th Cir. 2005), initially rejected the argument that the reasonable doubt standard applies at sentencing, but later removed that language in an amended opinion. Dupas, 419 F.3d 916 (9th Cir. 2005). Accordingly, the burden of proof remains an open issue in

18 this circuit. However, in light of the significant impact the "specific offense 19 characteristics" have on the sentence in this case, the Fifth and Sixth Amendments 20 would weigh in favor of the standard of reasonable doubt. 21 The presentence report applies all available enhancements and assigns 22 an adjusted offense level of 30 (97-121 months). Without the enhancements, the 23 offense level for Count 1 is 6 (0-6 months), and for Counts 2-7 the offense level is 24 23 (46-57 months). This is a substantial increase. As a result, having not heard from 25 the jury on any of the sentence-enhancing factors and absent any downward 26 27 28
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1 departure, the sentence should be calculated on the base offense level with no 2 enhancements. 3 4 5 6 7 8 9 10 III. Downward Departure. The defense requests a downward departure based on age, family and community ties, and because the offense of conviction overstates the offense conduct. Since the U.S. Sentencing Guidelines became advisory, under Booker, the focus has shifted back to the factors set forth in 18 U.S.C. 3553. Now the court must consult the Guidelines but may also consider a variety of other factors including factors previously discouraged or forbidden under the mandatory Sentencing

st 11 Guidelines. See, e.g., United States v. Antonakopoulos, 399 F.3d 68 (1 Cir. 2005) 12 (family circumstances not meeting traditional grounds for downward departure); th 13 United States v. Haidley, 400 F.3d 642, 645 (8 Cir. 2005) (purpose of the crime was

14 to pay for child's high medical expenses, and family situation; neither of which rose 15 to the level of departure); United States v. Ranum, 353 F.Supp. 2d. 984 (E.D. Wis. 16 2005) ("`The guidelines' prohibition of considering these factors cannot be squared 17 with the Section 3553(a)(1) requirement that the court evaluate the "history and 18 characteristics" of the defendant'); see also 18 U.S.C. § 3661( "no limitation shall 19 20 21 22 23 24 be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence" (cited in Booker, 125 S. Ct. at 743)). In addition, Congress has directed that the district court, in determining a just sentence, "shall impose a sentence sufficient, but not greater than

25 necessary, to comply with [the purposes of sentencing]" (emphasis added). 18 U.S.C. 26 § 3553(a). This is the "primary directive" of the sentencing statute. See Ranum, 353 27 F.Supp. 2d at 985. 28
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Jeanette Wilcher is 61 years old. As the court is aware, and as the

2 attached letters demonstrate, she has a close relationship with her family and with the 3 community. Several of her children live in the Phoenix area, and they have been 4 supporting her in a variety of ways throughout the course of this case. Her youngest 5 6 7 8 9 10 11 daughter ­ who recently opened a business and has been simultaneously planning her September wedding ­ was present in court whenever possible. Her youngest son, Damien, also plans to be married in the fall of 2007. Several of her close friends1 in ministry work were also present when their own schedules and health allowed. These factors may now be considered by the court as supporting a downward departure. Another consideration in support of a downward departure arises from

12 the discrepancy between the offense conduct and the charged offense. The money 13 laundering statutes were initially enacted as part of the Anti-Drug Abuse Act of 1986, 14 specifically targeting drug trafficking and related crimes. The reach of these statutes 15 has been substantially broadened through a series of amendments, and they now 16 target far more than drug trafficking crimes. The application of these statutes to this 17 particular case creates an anomaly, however, by morphing allegations of conversion 18 and misapplication of funds into money laundering and thus triggering significantly 19 20 21 22 23 24 25
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increased sentencing provisions under the non-mandatory Guidelines. In this case, the government presented evidence and asserted that money was obtained for one reason (investment) but was instead misapplied to personal purchases (e.g. house). In other words, at best, the evidence showed that the money was converted and diverted from one purpose to another. That is a far cry from the activities of someone

26 his family have been extremely supportive of Mrs. Wilcher throughout the case and during the trial. 27 28
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Sadly, Dr. Charles Doss, the head of Worldwide Harvester, died earlier this summer. He and

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1 who, for example, obtains vast amounts of money from drug trafficking or organized 2 crime, "launders" the funds through numerous offshore accounts, and then brings the 3 "laundered" funds back into the country through a series of complicated financial 4 transactions and institutions. 5 6 7 8 9 10 11 The application of money laundering statutes and guidelines to this case artificially inflates and distorts the offense conduct. Indeed, even the government conceded in its opening statement that there was "plenty of blame to go around." Other people (Mr. Allen, Mr. Carr/Gonzales, Mr. Ponikvar/Surber aka Sansea) had face-to-face meetings with Mrs. Gillaspie and did so because they wanted her money. Mrs. Wilcher's involvement in this case in no way warrants a sentence

12 as lengthy as the 8-10 years in prison that results from application of the money 13 laundering Guidelines. A downward departure should be applied, to balance the 14 discrepancy between the actual conduct and the charged offense. 15 17 18 19 20 21 22 23 24 25 26 27 28
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Excludable delay under 18 U.S.C. §3161(h)(1)(F) and (8)(A) will occur

16 as a result of this motion or from an order based thereon. Respectfully submitted: August 7, 2006. JON M. SANDS Federal Public Defender s/Deborah Euler-Ajayi________ DEBORAH EULER-AJAYI Assistant Federal Public Defender

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1 Copy of the foregoing transmitted by ECF this 7th day of August, 2006, to: 2 CLERK'S OFFICE 3 United States District Court 4 Sandra Day O'Connor Courthouse 401 W. Washington 5 Phoenix, Arizona 85003 6 JOHN LOPEZ/STEVE LARAMORE Assistant U.S. Attorney 7 Two Renaissance Square 40 North Central Avenue, Suite 1200 8 Phoenix, Arizona 85004-4408 9 Copy delivered to: 10 MARK NEBGEN 11 United States Probation Sandra Day O'Connor Courthouse 12 401 W. Washington, Suite 160 Phoenix, Arizona 85003 13 Copy mailed to: 14 JEANETTE WILCHER 15 Defendant 16 s/G. Dorsey G. Dorsey 17 18 19 20 21 22 23 24 25 26 27 28
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