Free Motion to Continue - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 Phoenix, Arizona 85003
State Bar No. 004723 (602) 368-9140 fax Attorney at Law

4 (602) 799-6336 5 Attorney for Defendant 6 7 8 9 United States of America, 10 11 13 14 15
The defendant, through undersigned counsel, moves this Court to continue the v. Plaintiff, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 03-0974-PHX-DGC MOTION TO CONTINUE SENTENCING (Second Request)

12 Neil Rusty Bond,
Defendant.

16 Sentencing presently set for November 28, 2005, for at least 30 days. The reason for 17 this request is set forth more fully in the attached memorandum. 18 20 21 22 23 24 Copy of the foregoing served by ECF filing nd 25
this 22 day of November 2005 to: \s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant The Assistant U.S. Attorney assigned to this case, Michelle Hamilton-Burns,

19 objects to this request.
RESPECTFULLY SUBMITTED this 22 nd day of November 2005.

26 Joscelyn N. Funnié

Michelle Hamilton-Burns Assistant U.S. Attorney

27 Two Renaissance Square 28 Phoenix, Arizona 85004-4408
40 N. Central Avenue, Suite 1200

Case 2:03-cr-00974-DGC

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1 Copy of the foregoing mailed nd 2
this 22

day of November 2005 to:

3 Defendant 5 6 7

Neil Rusty Bond

4 Jon Evanko
U.S. Probation Office Memorandum The defense has objections to the presentence report, which have not yet been

8 filed but briefly have been described in conversation with the probation officer. The 9 objections are incomplete for the reasons that follow. 10
Among others, a significant objection will be to the allegation of loss used for

11 sentence enhancement and restitution analysis. The alleged loss stems from the 12 government's claim that the defendant received benefits from Social Security from 13 1996 to 2001 on multiple occasions for which he did not qualify. The proposed 14 enhancement for loss is central to the case and is more than the base offense level 15 itself. While the defense will contend in its objections that the government had the 16 burden of proving the allegation of loss of over $100,000 beyond a reasonable doubt 17 and the jury did not make that finding, the defense still seeks records and information 18 that relate to the accuracy of calculating any loss. 19
In a brief capsule, there is dispute, confusion, and unanswered questions about

20 how the Social Security determined which sporadic months it chose as its basis for 21 whatever loss it claims. While the focus of the government's evidence at trial in this 22 case was on "gross earnings" of the self-employed defendant, the government's own 23 witness and case law described that the standard for measure of self-employed persons 24 is "net" income or profit. RT 3/1/05 13-33, 145; 3/2/05 134-35. Cf. Balick v. Office of 25 Personnel Management, 85 F3d 586 (D.C. Cir.1996) (using same definition of 26 "wages" used by Social Security; Insurance salesman for several companies entitled to 27 28 2

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1 deduct business expenses to compute income as self-employed "non-employee," but 2 not from companies that reported his income as "employee wages"). It appears that the 3 government's claim may relate back to imputed income as far back as 1993. Without 4 knowing what type of income and the method used to claim the loss or restitution, the 5 court cannot determine any amount claimed to have been lost for lack of entitlement. 6
Defense counsel has met with an accountant to pursue the objection and seek

7 accurate information of defendant's "net" earnings, if it is possible to obtain all of 8 what should be considered. After the authorization to obtain an accountant's services, 9 counsel's out-of-county jury trial over a two week period in late September and early 10 October, which was followed by the accountant's preplanned out-of-state travel, 11 counsel and the accountant were able to meet and discuss the case and issues on 12 Saturday October 29, 2005. Thereafter, the accountant attempted to obtain records 13 from the Social Security Administration and the Internal Revenue Service. The 14 indictment alleged conduct more than five years preceding the indictment, and 15 included 1996. The accountant sought copies, for example, of the actual officially filed 16 income tax returns with schedules, including profit and loss from business and also the 17 year 1996, but was told that IRS could take 4-8 weeks to obtain and must be requested 18 by the taxpayer at the taxpayer's expense. The accountant sought other records that 19 might be sufficient from IRS which were expected to take less time and be available to 20 him by last week, but he has still not received them. 21
The defendant himself sought copies of his income tax returns and schedules

22 from IRS before trial but, after a similar long delay, received different computerized 23 documents from IRS. At trial, the government only had unofficial copies of what may 24 have been the final version of the defendant's income tax returns for 1997-1999, seized 25 from Defendant's home with the search warrant. During trial the government obtained 26 an order from the court to obtain IRS tax records, including tax returns of the 27 28 3

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1 defendant from 1996-2001. Counsel requested from the government the records 2 obtained from that court order and counsel received computerized IRP (Information 3 Return Processing) printouts that do not have net business expense information 4 necessary for the defense, and counsel has been advised that the government did not 5 obtain copies of the tax returns from the order during trial. 6 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
\s Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant Additionally, more time is needed for consultation with the accountant and the

7 defendant to prepare for sentencing.
Therefore, the defense seeks a continuance from this Court for the defense to

9 prepare for sentencing and objections to the presentence report.
RESPECTFULLY SUBMITTED this 22 nd day of November 2005.

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