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 United States Attorney's Office Two Renaissance Square 40 North 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-03-0974-PHX-DGC Plaintiff, v. Neil Rusty Bond, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT AND REQUEST FOR EVIDENTIARY HEARING

The United States, by and through counsel, herein responds to the defendant's Objections to the Presentence Report and Request for Evidentiary Hearing, filed with this Court on January 7, 2006, the Saturday before defendant's Monday, January 9 sentencing. The government

requests that the objections and the request for evidentiary hearing be denied for the reasons set forth below. Excludable delay under 18 U.S.C. § 3161(h) may occur as a result of this motion or an order based thereon. Respectfully submitted this 9 th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S Michelle Hamilton-Burns MICHELLE HAMILTON-BURNS Assistant U.S. Attorney 1

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1 2 3 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 HISTORY Defendant was convicted by a jury on March 11, 2005 of one felony count of Theft of Government Property and one felony count of Social Security Fraud. The final Presentence Investigation Report was completed and provided to counsel on October 17, 2005. Defendant Bond filed a motion to continue the first scheduled sentencing in October, based upon the recent disclosure of the report. The sentencing was reset for November 28 th , 2005. Defendant filed a second motion to continue sentencing on November 22, citing as the reason the need for additional time to file objections to the presentence report calculation of the loss amount. The government objected (Docket # 148), indicating that the issue of the amount of loss was already raised extensively during trial and in the defendant's Motion for New Trial. The sentencing was continued, and this court indicated in its order that it would be the last continuance. The defendant now files a 26 page objection to the presentence report on January 7, the Saturday before the Monday, January 9 sentencing. All of the attached exhibits were provided to the defendant prior to trial. GOVERNMENT RESPONSE The government objects, based upon defendant's egregiously late filing, to the court's consideration of the objections and request for evidentiary hearing. If the court is nonetheless inclined to consider it, the government responds as follows: Loss Amount: The calculation of the loss amount is not a "mystery," as defendant contends. The superceding indictment alleged the amount in Count One, and the government admitted an exhibit during the trial, Exhibits 50, attached hereto, that detailed the Social Security Administration's calculation of loss. The defendant testified at trial and disputed the calculations based upon trial work period and income determinations. Although the jury did not determine the loss amount, the proof was presented and sustained. Obstruction of Justice: The Court repeatedly admonished the defendant during the trial to answer questions, as it appeared that the defendant was deliberately nonresponsive in an effort 2

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to appear mentally dim. The Court: Well, I will tell you this, and Mr. Bond, please listen to me, that, Mr. Holtzen, you are to work with your client so that he can answer questions that are asked of him that require a yes-or-no answer. In his responses he has gone off in different directions and made statements that I believe he preferred to make on occasion than just a yes-or-no answer or he wished to elaborate on, ...(RT 3/9/05 p. 142) The Court: Mr. Bond, from the tape recording it is clear to me, and I'm making a record on this, that you understand questions and you understand an appropriate response, such as yes or no, and not rambling on to something that is not relevant to the question asked. Also, it's quite clear to me that you answered those questions, and this is most recently, without pausing for an interminable amount of time and that, finally, your answers were appropriate and that the follow-up answers were appropriate. . . . Now, I understand quite well it's difficult to testify in a courtroom. However, you should know that my observation is that your pausing under some circumstances is not warranted and definitely you understand what it takes to answer a simple question when a yes-or-no answer is required. (RT 3/10/05 p. 55-56) The Court: Please be seated, Mr. Bond. Again, you have given answers which required me to interrupt or the government to interrupt when the questions call for a yes-or-no answer. You appear to be intelligent. That's a question for the jury to decide. But considering all you testimony on direct, cross-examination and when I've had colloquies with you about the manner and means in which you are to testify, it is clear to me that you understood me every time that your answer should be yes or no. (RT 3/10/05 p. 149) The Court: Well, you have appeared to do so but your memory is selective. You have answered yes or no when I believe you feel like and it appears to me that you feel like that you have to give a yes or not but when it is something that you're concerned about you have answered the question - - you have not answered yes or no, you have given a reason or excuse for answering either yes or no. (RT 3/10/05 p. 150-151) The record is replete with admonishments by the Court to Mr. Bond, directing him to answer the question, as well as orders to strike portions of his answers. (RT 3/9/05, 3/10/05) Defendant lied repeatedly while testifying about the extent of his employment and earnings as evidenced by the fact that the jury returned verdicts of guilty, in less than an hour. Defendant Bond was on the stand almost 2 full days out of the 4 days of trial testimony. Defendant's continual refusal during the trial to answer questions as asked, and his repeated denial of guilt is sufficient evidence to support the enhancement for Obstruction of Justice. OFFENSE CONDUCT ¶6 - The defendant asks that the PSR be amended because it refers to two businesses rather than one business doing business as two businesses. Given that the difference is borderline 3

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semantical, the government does not object to this amendment. ¶6 - The defendant objects to the PSR characterization of the results of his mental health reports. The report is accurate: defendant's objection is not a factual one. ¶8 - Defendant's objection is to the characterization of the import of defendant's prior statements concerning income and employment. The report is accurate: defendant's objection is not a factual one. Furthermore, the PSR indicated that "documentation," not deposition testimony indicated Bond earned $8,000.00 as defendant suggests. ¶9 - Although defendant's ex-wife and minor child applied for and received benefits, it was only after defendant Bond indicated in his original application the eligibility of benefits paid to his minor child. The government admitted defendant's original application for SSI at trial, Exhibit 2, attached hereto, that indicated the possible eligibility of his daughter. Defendant Bond also agreed to have her payments mailed to his ex-wife's address. ¶'s 10, 11, 12, 14 - Defendant's objections are again, to the characterization of the facts and interpretation of the information contained in documents. The report is accurate. VICTIM IMPACT ¶'s 16, 17 - Defendants objections are to the stated loss amount, discussed fully above. ¶'s 18, 25 - Defendant reiterates his objection to the obstruction of justice enhancement, also discussed fully above. OFFENSE LEVEL COMPUTATIONS Adjustments to these computations are dependent upon the court's findings as to the objections made by the defendant, thus the government has no. DEFENDANT'S CRIMINAL HISTORY ¶'S 31, 35, 37,39, 41, 43-45 - The defendant presents no evidence to counter the probation officers determination of criminal history. The objections should not therefore be sustained. PERSONAL AND FAMILY DATA/PHYSICAL CONDITION/FINANCIAL CONDITION:ABILITY TO PAY The government will address these paragraphs of the Objections at the time of sentencing,

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given the lack of sufficient time to respond in writing. In any event, these objections do not affect the guideline calculations.

SENTENCING OPTIONS The final guideline calculations will be dependent upon the court's ruling on the aforementioned objections. The government objects to the requests for downward departure based upon the grounds stated by defendant, as the defendant has not sustained his burden of establishing the basis for departure, and for the reason that the evidence presented during the trial belie defendant's contentions. CONCLUSION For the reasons stated herein, and based upon arguments at sentencing in this matter, the government requests that defendant's objections not be sustained and that the court deny his request for an evidentiary hearing.

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1 2 3 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 6 /S Michelle Hamilton-Burns I hereby certify that on this 9th day of January, 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: Timothy C. Holtzen [email protected] CERTIFICATE OF SERVICE

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