Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 and Mark T. Odulio, Trial Attorneys, Department of Justice, Tax Division, files its Response to 25 Defendants' Motions For Bail Pending Appeal. The Government opposes all five motions filed 26 by the respective trial defendants. 27 28 Plaintiff, United States of America, by and through its counsel of record, Larry J. Wszalek 1. Dennis O. Poseley; 2. Patricia Ann Ensign; 5. David W. Trepas aka David Morningstar; 6. Rachel McElhinney; 8. Keith D. Priest; Defendants. United States of America, Plaintiff, v. Government's Response to Defendants' Motions For Bail Pending Appeal CR03-344-PHX UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
LARRY WSZALEK State of Wisconsin Bar No. 1003722 MARK T. ODULIO District of Maryland Bar No. 26348 Trial Attorneys U.S. Department of Justice Tax Division Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7661 PAUL K. CHARLTON United States Attorney District of Arizona

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1 I. 2 3

LEGAL PRINCIPLES In general, persons convicted of federal crimes are not eligible for release pending appeal

4 unless a court finds: 5 6 7 8 9 10 11 12 13 14 15 for a defendant to be released on bail pending appeal. United States v. Hardy, 761 F.2d 1279, (A) 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 . . . and (B) 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) (iv) reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or 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. 18 U.S.C. §3143(b)(1).

By enacting the Bail Reform Act of 1984, Congress made it considerably more difficult

16 1283 (9th Cir. 1985). Moreover, by enacting a clear and convincing standard and placing the 17 burden on the defendant, the Bail Reform Act creates a presumption against release pending 18 appeal. 19 DISCUSSION 20 II. 21 22 23 24 that Mr. Poseley is not a danger to another person or the community. That has never been a A. Danger to the Community

The Government notes that Defendant Dennis Poseley initially claims "there is no issue

25 contention advanced by the Government." (Dkt. 872, pg. 8) Nothing could be further from the 26 truth. Defendant Dennis Poseley continues to commit tax crimes while on release. As such, he 27 28
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1 fails to establish by clear and convincing evidence that he is not likely to pose a danger to the 2 3 4 On February 7, 2006, the Government moved to revoke Defendant Dennis Poseley's bond community.

5 based on evidence that Defendant Poseley continued to commit tax crimes while on release. 6 7 8 an individual tax return for tax year 2004, despite having received income in excess of the filing 9 threshold ­ $12,800 for married individuals; and $7,950 for unmarried individuals. The 10 Government provided evidence that Defendant Poseley's employer issued him a Form W-2 at 11 12 13 Company issued Dennis Poseley a Form 1099-S in the amount of $38,000. It is believed that 14 this represents the sale of property that Dennis Poseley inherited from his father. John Poseley 15 16 17 was "probably a thousand dollars". (Testimony of John Poseley. Dkt. 779. Pg. 121-122, Lines 18 25-2). The gain on the property alone exceeds the filing threshold. 19 20 21 22 year 2004. As such, Defendant Poseley continues to pose a threat to the community by 23 continuing to commit income tax crimes while on release. Based on these facts alone, Defendant 24 25 26 27 28
3

(Dkt. 743) Specifically, the Government alleged that Defendant Poseley willfully failed to file

the end of 2004 documenting wages totaling $33,750. In addition, Fidelity National Title

testified at trial that the value of the inherited property Dennis Poseley received from his father

Defendant Poseley had a duty to file individual income tax returns for tax year 2004. The due date for filing the return was April 15, 2005. He did not file an individual tax return for tax

Poseley fails to prove by clear and convincing evidence that he does not pose a danger to the community if released. See 18 U.S.C. §3141(b)(1)(A).

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B.

No Showing of Substantial Question of Law or Fact

Collectively, the trial defendants identify six issues they believe raise substantial

4 questions of law or fact which justify release pending appeal. Some issues are shared by more 5 than one defendant while others are exclusive to an individual defendant. The Government 6 7 8 9 1. Disclosure of Audit Information responds separately to each of the six arguments raised by the trial defendants.

Defendants Dennis Poseley and David Trepas resurrect for a third time the oft-rejected

10 argument that the Government's failure to disclose audit information in advance of the testimony 11 of four witnesses is a basis for reversal or new trial. Defendants argument ring just as hollow 12 13 now as when first advanced at trial. This Court previously rejected the same argument on two 14 prior occasions. It should do so again on the third try. There was no Brady violation relative 15 16 17 Cynthia Porter and Patrick Porter. Moreover, the defendants scant use of the audit information to the Government's failure to disclose audit information prior to the testimony of Eric Melling,

18 after its disclosure reinforces that conclusion. 19 20 21 22 associated with the audit. Prior to disclosure of the audit information, Eric Melling, Cynthia 23 Porter and Patrick Porter were subject to grueling cross examination about their motivations for 24 25 26 investigation. Each was made available for re-cross after the fact of the audits were disclosed. testifying. Each testified that their cooperation stemmed, in part, from the fear of criminal As previously found by the trial court, the audit files of all prosecution witnesses were collateral to impeachment. It was the fact of the audit that served to impeach, not the minutia

27 Defendants declined the offer. 28
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Of the four trial witnesses for whom defendants did not have advance notice of the audits, only one -- Samual Pak -- was recalled to the witness stand. Upon being recalled, Mr. Pak testified about an on-going audit and explained that the IRS was interested solely in his offshore

5 transactions. (Transcript, Samual Pak. Pg. 139, lines 3-5). 6 7 8 Howard Goldberg, Laila Brietler, and Stacy Vornbrock were all subjects of IRS audits. Each 9 testified at trial. The defendants were made aware of the existence of these audits (and the audit 10 years) in advance of their testimony. All five defense attorneys had an opportunity to cross 11 12 13 one, elected to broach this issue on cross examination. The one time David Trepas' attorney did 14 inquire about the audit with Laila Brietler, it backfired. Laila Brietler testified that she had been 15 16 17 Ms. Brietler testified on July 28, 2005. The very next trial day (August 2, 2005), defense 18 attorneys advised the Court that they would not be seeking to recall Eric Melling, Cynthia Porter, 19 and Patrick Porter. Not surprising. Despite allegations of fatal prejudice and cries for a mistrial, 20 21 22 responded with a meek "never mind". In the Government's estimation, defendants' bluster is 23 much ado about nothing. Remedies were offered and rejected. Witnesses were cross examined 24 25 26 27 28
5

Following disclosure of the audits, the defendants made scant use of the information. Dr.

examine Dr. Goldberg, Laila Brietler, and Stacy Vornbrock about their audits and none, save

audited and slapped with a $180,000 tax bill, thereby reiterating the sham nature of the trusts.

in the end, when given an opportunity to exploit this area on cross examinations defendants

without reference to their civil audits. And rather than serving as an impeachment tool to expose bias, the audit results proved the sham nature of the trusts.

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In declining to recall Eric Melling, Cynthia Porter, or Patrick Porter, the defendants wanted to avoid a repeat of Laila Brietler's testimony. Theirs was a strategic decision. Dare to explore witness bias at the risk of opening the door to potential testimony of large tax bills. For

5 Defendant Dennis Poseley and David Trepas it was safer to speculate about witness bias in a 6 7 8 argue later does not establish by clear and convincing evidence that a substantial question of law 9 or fact exists on appeal regarding audit disclosures. Defendant Dennis Poseley and David 10 Trepas' motion for bail pending appeal based on Brady and disclosure violations should be 11 12 13 14 15 16 17 without reference to the testimony) Defendant Poseley concludes that "reasonable jurists can, 2. Alleged False Testimony denied. later motion than confront the witness at trial. Unfortunately, the decision to remain silent and

Defendant Dennis Poseley persists in his position that witnesses Cynthia and Patrick Porter, Eric Melling, and Samuel Pak testified falsely. In sweeping, general language (and

18 and may likely disagree, with this court's earlier ruling and require a reversal for allowing four 19 different witnesses to testify deceptively before the jury." Defendant Dennis Poseley is wrong. 20 No reasonable jurist can draw such conclusion based on the record. As set forth in the 21 22 Government's original response to defendants allegations of false testimony (Dkt. 641), the 23 accusations are so baseless that they approach ethical boundaries of fairness. 24 25 26 27 28
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At trial, this Court made explicit findings that none of the four witnesses provided false testimony. It reviewed the transcripts and concluded that not only had the defendants failed to

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1 establish false testimony, they also failed to establish materiality given the extensive and 2 3 4 To prevail on a claim of false testimony, a defendant must show (1) the testimony was thorough cross examination of the defendants.

5 actually false; (2) the prosecution knew or should have known that the testimony was actually 6 7 8 2005). Defendant Poseley's single sentence conclusion that reasonable jurists may likely 9 disagree is wholly lacking in substance and fails to establish by clear and convincing evidence 10 that false, material testimony was elicited at trial from witnesses Melling, Pak, and the Porters. 11 12 13 well. 14 15 16 17 fraught with error and could very well result in the imposition of an unconstitutionally excessive 3. Guidelines Application Defendant Dennis Poseley's motion for bail pending appeal on this issue should be denied as false; and (3) the false testimony was material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.

Defendant Trepas makes a general assertion that the Government's tax loss theory "is

18 sentence" resulting in an appeal issue that would raise a "substantial question" of an issue which 19 is fairly debatable or fairly doubtful. Handy, 761 F.2d at 1283. Defendant Trepas' argument is 20 meritless. First, Defendant Trepas' motion was filed on June 27, 2006, one day prior to his 21 22 sentencing in this case. (Dkt. 881). Accordingly, Defendant Trepas' arguments asserting error 23 in the application of the sentencing guidelines are entirely speculative and are unsupported by 24 25 26 arguments without the benefit of the Court's ruling? Contrary to Defendant Trepas' speculation, any reference to the Record. Indeed, how could Defendant Trepas make specific, cogent legal

27 the Court's application of the Guidelines and 18 U.S.C. Section 3553 factors was sound. 28
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The Court ruled that the tax loss from the conspiracy totaled between $3,000,000 and $7,000,000. In doing so, the Court relied principally on Government's Methodology 1 which consisted of select trial witnesses and the defendants' personal tax losses. The calculations were

5 based on tax returns, trial testimony, bank records, and IFC Quick books analysis. They 6 7 8 9 10 11
3 DUBOIS, Dirk ENSIGN, Patricia Witness Defendant 13,415 467,996 Amended 1998, 1999, 2000 returns Quickbooks & Bank records (Trial Exhibit 422 + Tax years 1996 & 2002) Quick Books & Bank records (Trial Exhibit 446 + Tax year 1997) Amended 1997, 1998 returns Quickbooks & Bank records (Trial Exhibit 422 + Tax years 1996 & 2002) Quickbooks & Bank records Quickbooks & Bank records (Trial Exhibit 447 + Tax year 2002) Quickbooks & Bank records (Trial Exhibit 446 + Tax year 1997) Plea Agreement 1 2

included: NAME
ADAIR, Doug BREITLER, Laila

STATUS
Witness Witness

AMOUNT
1,315,622 180,000

BASIS
Amended 1994, 1995, 1996 returns Trial Testimony

12 13 14 15 16 17 18
7 6 PORTER, Cynthia & Patrick POSELEY, Dennis Witness Defendant 166,371 467,996 5 McElhinney, Rachel Defendant 56,678 4

19 20 21 22 23 24 25 26 27 28
8
11 WILLIAMS, Frank Defendant 412,442 10 TREPAS, David Defendant 56,678 8 9 POSELEY, Mark PRIEST, Keith Defendant Defendant 54,264 42,943

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1 2 3 4
TOTAL

3,234,404 (Level 24)

As evident from the foregoing table, the Court's tax loss finding was based primarily on

5 evidence presented at trial. While the court acknowledged that the tax loss was likely much 6 7 8 9 figure. Moreover, Defendant Trepas' sentence fell far below the applicable guideline range higher, as reflected in the government's proffered methodologies, it settled on a conservative loss

10 calculated by the Court. Based on the tax loss and other sentencing enhancements, the Court 11 found that Defendant Trepas' applicable guideline range totaled 30, which corresponded to 12 13 sentence of imprisonment of 97-121 months. However, the Court sentenced Defendant Trepas 14 to 60 months imprisonment. The 60 month sentence corresponds to an offense level of 25 (5715 16 17 Given the five level departure to Defendant Trepas' applicable sentencing range, 71 months), five guideline levels below the applicable guideline ranged calculated by the Court.

18 Defendant Trepas' speculative claim that the Guidelines were applied unconstitutionally must 19 fail. 20 21 22 4. Acquitted Conduct Defendants Ensign, McElhinney and Priest all argue that the Court's consideration of

23 acquitted conduct at sentencing provides a basis for bail pending appeal. The only sentencing 24 25 26 Section 2T1.1(b)(1)- failure to report or to correctly identify the source of income exceeding factor for which the Court considered acquitted conduct was a 2 level enhancement under USSG

27 $10,000 in any year from criminal activity. The Court did not consider acquitted conduct in 28
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1 determining tax loss . It did not consider acquitted conduct when applying a sophisticated means 2 3 4 tagging Defendant McElhinney with a 2 level adjustment for obstruction of justice under 3C1.1. enhancement under USSG Section 2T1.1(b)(2). And it did not consider acquitted conduct when

5 Accordingly, the only specific offense characteristic for which acquitted conduct was considered 6 7 8 source of income exceeding $10,000 in any year from criminal activity under USSG Section 9 2T1.1(b)(1). 10 11 12 13 148, (1997). The Court's position is supported by Circuit Courts, including the Ninth Circuit, 14 which have ruled that the application of acquitted conduct in sentencing hearings as articulated 15 16 17 United States v. Johnson, 444 F.3d 1026, 1030 (9th Cir. 2006)(ruling that neither Booker nor 18 Ameline "would preclude the district court on resentencing" from considering acquitted conduct 19 (citing Watts)); United States v. Edwards, 427 F. Supp2d. 17, 24-6 (D.C. Cir. 2006)(ruling that 20 21 22 conduct as contemplated by the Supreme Court in Watts and noting that "[e]very federal circuit 23 that has addressed post-Booker the issue of sentencing enhancements based on judge-found facts 24 25 26 Amendment right to a jury trial so long as the sentence is within the statutory range authorized regarding acquitted conduct has concluded that such enhancements do not violated the Sixth in light of Booker and the Sixth Amendment, the sentencing court could still consider acquitted in Watts was unaffected by United States v. Booker, 543 U.S. 220 (2005) and its progeny. The Court properly ruled that as a matter of law, acquitted conduct could be used in the sentencing phase if proven by a preponderance of the evidence. United States v. Watts, 519 U.S. relates to the Court's 2 level upward adjustment for failing to report or correctly identify the

27 by the jury's verdict- the lynchpin of Booker itself")(citations omitted); United States v. Vaughn, 28
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1 430 f.3d 518, 527 (2d Cir. 2005)(repudiating the defendant's claim that Booker invalidated the 2 3 4 Circuit "join[ed] the Seventh, Tenth and Eleventh Circuits in rejecting a claim that, after Booker, rule of the use of acquitted conducted articulated in Watts and noting that in doing so, the Second

5 district courts may no longer consider acquitted conduct when sentencing within the statutory 6 7 8 United States v. Magallanez, 408 F.3d 672, 685 (19th Cir. 2005)("[a]pplying the logic of Watts 9 to the Guidelines system as modified by Booker, we conclude that when a district court makes 10 a determination of sentencing facts by a preponderance test under the now-advisory Guidelines, 11 12 13 reasonable doubt standard. In this respect, the prior Guidelines scheme is unchanged by the 14 seeming revolution of Booker"); United States v. Duncan, 400 F.3d 1297, 1304-05(11th Cir. 15 16 17 Based on the foregoing, the Court's limited consideration of acquitted conduct at the 18 sentencing is in accord with Watts and does not raise a substantial question of law or fact which 19 will likely result in a reversal or an order for a new trial. The case law is clear and undebatable. 20 21 22 consideration of it in this case does not raise a substantial question of law or fact. 23 24 25 26 assistance of counsel provides a basis for bail pending appeal. No other defendant relies on this 5. Ineffective Assistance of Counsel Consideration of acquitted conduct at sentencing is permissible and the Court's sparing 2005)(same). it is not bound by jury determinations reached through application of the more onerous range")(citations omitted); United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005)(same);

Defendant McElhinney argues that the Court's failure to grant her motion for ineffective

27 argument as a basis for bail pending appeal. A review of both the procedural history and 28
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1 relevant case law demonstrates that this argument is meritless and therefore does not raise a 2 3 4 On January 3, 2006, Defendant Dennis Poseley moved for mistrial based on juror substantial question of law or fact which will likely result in a reversal or an order for a new trial.

5 misconduct claiming that jurors conducted outside research on the tax filing thresholds. (Dkt 6 7 8 9 733). The Government responded to Defendants' motion on January 13, 2006, claiming the 727). All of the co-defendants joined in this motion including Defendant McElhinney. (Dkt.

10 motion was untimely and that it lacked credibility due to two levels of unsubstantiated hearsay. 11 12 13 reply to the government's response. (Dkt. 737). On January 26, 2006, Defendant Dennis Poseley 14 requested additional time to file a reply in order to locate and interview the juror alleged to have 15 16 17 18 740). On February 10, 2006, Defendant Dennis Poseley moved to withdraw his motion for new made the claims in question. (Dkt. 739). The Court granted the request for additional time. (Dkt. (Dkt. 734). On January 18, 2006, this Court ordered Defendant Dennis Poseley to file a written

19 trial after Juror 3 advised an investigator that "she had no `direct evidence' that anyone had done 20 21 22 740 at pg. 2). No other defendant independently pursued the motion for a new trial. As a result, 23 on April 6, 2006, the Court ordered Defendant Dennis Poseley's motion for new trial be 24 25 26 On June 2, 2006, Defendant McElhinney filed a motion seeking a new trial alleging withdrawn. (Dkt. 791). outside research into matters which would have implications for the jurors' deliberations." (Dkt.

27 ineffective assistance of counsel. (Dkt. 837). Defendant claimed counsel was ineffective for 28
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1 failing to timely file a motion for new trial based on juror misconduct within 7 days of the 2 3 4 allegations of juror misconduct were brought to her attention immediately following the verdict verdict as provided in Rule 33, Fed. R. Crim. Proc. Defendant McElhinney argues that

5 but that the mistrial motion was filed four months later by Defendant Poseley. Defendant 6 7 8 a new trial in this matter. On June 28, 2006, the Court denied Defendant McElhinney's motion 9 for new trial based on ineffective assistance of counsel. 10 11 12
th th 13 896, 900 (9 Cir. 2000); United States v. Andrews, 75 F.3d 552, 557 (9 Cir. 1996).

McElhinney claims there was sufficient evidence of juror misconduct upon which to mandate

Claims of ineffective assistance of counsel generally must be raised with the district court in the first instance to allow for a sufficient record on appeal. United States v. Ross, 206 F.3d In

14 Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test 15 16 17 performance fell below an objective standard of reasonableness; and (2) counsel's deficient 18 performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair 19 outcome in the proceeding. Id. at 687. In reviewing an ineffective assistance claim, the court 20 21 22 reasonableness, maintaining a presumption that defense counsel's performance was adequate. 23 Id. at 688-89. Bell v. Cone, 535 U.S. 685, 702 (2002). 24 25 26 analysis. That is, defendant fails to prove that her previous attorney's performance fell below In this case, Defendant McElhinney's claim fails the first prong of the Strickland must judge the defense counsel's performance according to an objective standard of to evaluate ineffective assistance claims. To prevail, a defendant must prove that: (1) counsel's

27 an objective standard of reasonableness. First, there is no evidence in the record that Defendant 28
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1 McElhinney communicated to her previous attorney the alleged juror misconduct she learned 2 3 4 an affidavit from former attorney Richard Juarez, the affidavit is utterly devoid of any detail about on the courthouse steps following the verdict. Although Defendant McElhinney provided

5 which would substantiate Defendant McElhinney's claim. Instead, the affidavit offers a generic 6 7 8 9 Defendant McElhinney to Mr. Juarez. (Dkt. 858, Attachment 1). Second, Defendant McElhinney's previous attorney joined in the original motion for recitation of events without elaborating on the extent and degree of information given by

10 mistrial and was not procedurally barred by the 7 day limit proscribed in Rule 33. (Dkt. 733). 11 12 13 extending the reply date two weeks to February 9, 2006. (Dkt. 740). Third, and most 14 importantly, there is no evidence that any juror relied on extrinsic evidence during deliberations. 15 16 17 18 26, 2006 establishes the spurious nature of her claim. (Dkt. 837, Exhibit A). Juror 3 was interviewed on January 26, 2006. On three separate occasions Juror 3 was Defendant McElhinney's own exhibit, a memorandum of interview of Juror No. 3 darted January Indeed, the Court gave defendants every reasonable opportunity to pursue their claims by

19 directly confronted with allegations she made to Rachel McElhinney about another juror's 20 21 22 substantiate the allegation. Each instance is outlined below. 23 24 25 26 27 28 I told Laurel it was my understanding that she had spoken to Rachel about one of the jurors on this case having done some research outside of the jury room using material that was not introduced in trial or made available to the jurors by the court during their deliberations. Laurel said she knew the juror I was talking about. She went on to tell me, "I have no direct evidence of anything." (Dkt. 837. Exhibit A, pg. 1)
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reliance on extrinsic materials during deliberations. On each occasion, Juror 3 was unable to

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I specifically asked to speak with Laurel about information I had received related to comments she purportedly made to Rachel. I said it was my understanding that she (Laurel) had "indicated they (Juror #5) had looked into whether or not anyone had to [f]ile and had researched the law through some outside reference source." Laurel said she remembered talking to Rachel about this and went on to explain [the] comment or conversation. (Whereupon Laurel described how Juror #5 read from a Tax Code admitted into evidence) (Dkt. 837. Exhibit A, pg. 4) I asked Laurel if Juror #5 ever told her about referring to any material outside of the jury room to come up with his opinion regarding the reporting requirements to IRS. Laurel said she would have to think about this to see if she remembered him telling her or anyone else he had referred to material outside of what was introduced at trial. (Dkt. 837. Exhibit A, pg. 5) Based on this interview of Juror 3, it is understandable why all five attorneys collectively

12 withdraw their motions for a new trial based on juror misconduct. Indeed, in withdrawing the 13 14 15 Court, the issue of extraneous information, if any, is not present." (Dkt. 746 at pg. 3) The motion, Dennis Poseley's attorney noted that "consistent with counsel's duty of candor to this

16 Government could not have said it better. No evidence exists to support the original allegations 17 of juror misconduct. 18 Last, the Government notes that Juror 3's interview reveals nothing more than her 19 20 impressions of the deliberative process in this case. Rule 606(b), Fed. R. Evid. clearly prohibits 21 the use of juror's statements or mental impressions that occurred during deliberations to impeach 22 23 24 about juror's mental processes in reaching verdict barred by Rule 606(b)); United States v. 4.0 a verdict. See United States v. Henley, 238 F.3d 1111, 1117-1118 (9th Cir. 2001) (testimony

25 Acres of Land, 175 F.3d 1133, 1140 (9th Cir. 1999) (same); Morgan v. Woessner, 997 F.2d 26 1244, 1260-1262 (9th Cir. 1993) (same). The submission of a juror's affidavit or other evidence 27 28
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1 of any statement by a juror regarding what occurred during deliberations is also prohibited from 2 3 4 Similarly, Rule 606(b) prohibits inquiry into a juror's statements or mental impressions being used to impeach a verdict under the rule. Fed. R. Evid. 606(b).

5 during deliberations. Id. The sole exception is where the inquiry is narrowly focused on 6 7 8 extraneous influence was improperly brought to bear upon any juror. Id. However, even under 9 this exception, the Court may not inquire about the impact that any extraneous information or 10 influence may have had on the verdict. Sassounian v. Roe, 230 F.3d 1097, 1108-1109 (9th Cir. 11 12 13 Cir. 1981). Under the limited exception, there is a clear distinction that is drawn between the 14 objective events that may have influenced the jury and the subjective thoughts of the jury, with 15 16 17 18 Evidence § 606.04[2][c]. Based on the foregoing, the Court's rejection of Defendant McElhinney's ineffective the latter category being protected from inquiry under Rule 606(b). Weinstein's Federal 2000); Henley, 238 F.3d at 1117-1118; United States v. Bagnariol, 665 F.2d 877, 884-885 (9th whether extraneous information was improperly brought to the jury's attention or whether

19 assistance of counsel claims is not a "substantial question" which implicates an issue which is 20 21 22 sufficiently demonstrate that on appeal, the ineffective assistance of counsel claim likely result 23 in reversal or a new trial. 24 25 26 27 28
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fairly debatable or fairly doubtful. Handy, 761 F.2d at 1283.

The defendant has failed to

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6.

Removal of Oscar Stilley

Defendant Ensign argues that the Court's decision precluding Oscar Stilley from trying

4 her case raises a "substantial question" as to denial of Defendant Ensign's right to counsel of 5 choice. 6 7 8 the removal of Oscar Stilley as lead counsel before trial; and the second goes to the Court's 9 refusal to permit representation of Ms. Ensign after commencement of the trial. 10 11 12 13 counsel. The Court found that Mr. Stilley had omitted numerous pending ethical issues from his 14 application "which had the Court been aware before admitting Mr. Stilley as CJA counsel pro 15 16 17 District of Arizona not to admit counsel to the CJA defense panel with pending ethical issues, hac vice, it would have denied the application." (Dkt. 524) Noting that it is the practice in the As to the part one, this Court removed Oscar Stilley as lead counsel because, within its sound discretion, it denied Mr. Stilley's pro hac vice application to serve as CJA appointed coDefendant Ensign's sixth amendment challenge consists of two parts. The first goes to

18 the Court exercised its discretion in concluding that Mr. Stilley would not have been admitted 19 to the CJA defense panel "in the ordinary course of panel selection". (Dkt. 524). 20 This ruling had no impact on Defendant Ensign's sixth amendment rights. See, United 21 22 States v. Mack, 362 F.3d 597, 599, fn. 3 (9th Cir. 2004)(noting that "it is well settled that a 23 defendant is not entitled to have a particular counsel appointed.")(citing Caplin & Drysdale, 24 25 26 reiterated "the authority of trial courts to establish criteria for admitting lawyers to argue before Chartered v. United States, 491 U.S. 617, 626 (1989)). Indeed, the Supreme Court recently

27 them" including a court's "independent interest in ensuring that criminal trials are conducted 28
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1 within the ethical standards of the profession." United States v. Gonzalez-Lopez, No. 05-352, 2 3 4 Given the Court's finding that Oscar Stilley's pending ethical issues precluded him from slip. op. at 11-12 (U.S. June 26, 2006)(citing Wheat v. United States, 486 U.S. 153, 160 (1932)).

5 appointment as CJA counsel, Defendant Ensign has failed to show by clear and convincing 6 7 8 Part two of Defendant Ensign's motion centers on the Court's refusal to permit Mr. Stilley 9 to represent Defendant Ensign after jury selection. Defendant Ensign loosely asserts that she and 10 Mr. Stilley reached an agreement regarding representation after jury selection. Apparently, Mr. 11 12 13 in the future." The Government was not privy to these proceedings which took place on June 14 8, 2005. Nevertheless, in its June 10, 2005, order, the Court denied Mr. Stilley's renewed pro 15 16 17 assume that the same basis that disqualified Mr. Stilley from practicing before the Court in May 18 2005 (existing ethical issues in the State of Arkansas) served as the basis for his disqualification 19 in June 2005. 20 21 22 hearing. She fails to reference any portion of the Record in support of her argument omitting 23 all references to the transcript, court findings, and/or court order regarding that proceeding. 24 25 26 counsel will not reiterate this Court's ruling here." (Dkt. 874, pg. 2) It is the Government's Instead, she makes the bald assertions that "a record was made of this Court's ruling, therefore Defendant Ensign's motion is peculiarly vague as to what transpired at the June 8, 2005, hac vice application for admission to practice before the Court. (Dkt. 574). It is reasonable to Stilley had not been paid any money but Mr. Stilley "was hopeful that he would be compensated evidence that this issue raises a substantial question of law.

27 position that Defendant Ensign cannot make a showing by clear and convincing evidence 28
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1 without referencing any evidence. Amorphous references to the record fall far short of meeting 2 3 4 5 6 7 8 during the appointment of Mr. Stilley. Morever, the Court has broad discretion under 18 U.S.C. 9 3006(A) to "substitute one appointed counsel for another at any stage of the proceedings." 18 10 U.S.C. 3006A(c). Based on the foregoing, the Court's removal of attorney Stilley does not raise 11 12 13 Handy, 761 F.2d at 1283. Defendant Ensign has failed to demonstrate by clear and convincing 14 evidence that removal of attorney Stilley would likely result in reversal or a new trial. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
I hereby certify that on July 10, 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:: Stephen Kunkle 111 W. Monroe, Suite 1212 Phoenix, AZ 85003

ones evidentiary burden. Without more, the Government is left guessing as to the basis for Defendant Ensign's sixth amendment argument. Clearly, Defendant Ensign was represented by Attorney Gonzalez for over one year prior to Mr. Stilley's appearance and she continued to be represented by Mr. Gonzalez concurrently

a "substantial question" which implicates an issue which is fairly debatable or fairly doubtful.

Respectfully submitted this 10th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Larry J. Wszalek LARRY J. WSZALEK MARK T. ODULIO Trial Attorneys

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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

Counsel for Dennis Poseley Alex Gonzalez 1811 S. Alma School Road, Suite 230 Mesa, AZ 85210 Counsel for Patricia Ensign Rena P. Glitsos 45 W. Jefferson Luhrs Tower - Suite 512 Phoenix, AZ 85003 Counsel for David W. Trepas Gregory A. Robinson 6040 North 7th Street Suite 300 Phoenix, AZ 85104 Counsel for Rachel McElhinney Gregory T. Parzych 1811 South Alma School, Suite 200 Mesa, AZ 85210-3005 Counsel for Keith D. Priest

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