Free Other Notice - District Court of Arizona - Arizona

1 TIMOTHY C. HOLTZEN 2 245 W. Roosevelt St. 3 Phoenix, Arizona 85003
State Bar No. 004723 Attorney at Law

4 (602) 799-6336 5 6 7 8 United States of America, 9 Plaintiff, 10
v. Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CR 04-1018-PCT-JAT NOTICE OF PROPOSED OBJECTIONS TO PRESENTENCE REPORT

11 Frederick Marianito, 12 Defendant. 13 14

The defendant, through undersigned counsel, gives notice of proposed

15 objections to the presentence report, although any action or ruling on them is 16 considered to be premature at this time, for the reasons set forth in the accompanying 17 memorandum. 18 19 20 21 22 23 Copy of the foregoing served by ECF filing
June 13, 2006 to: s\ Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant RESPECTFULLY SUBMITTED June 13, 2006.

24

Daniel Drake 25 Assistant U.S. Attorney

26 and faxed to: Carlos Valentin, U.S. Probation Office 27 and mailed to: Frederick Marianito, Defendant 28

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MEMORANDUM Defendant Frederick Marianito has entered into an agreement for a sentencing

3 deferred for a period of one year. That agreement included the entry of a guilty plea 4 and scheduling for a status hearing on sentencing, with time permitted to prepare a 5 presentence report ("PSR"). A guilty plea has been entered and a presentence report 6 has been prepared. At the status hearing, it is expected pursuant to the plea agreement 7 that the court will set a sentencing date in one year. If the defendant complies with 8 conditions of supervision, the government will move for dismissal of the charges 9 against the defendant. Hence, the defendant anticipates that any requests for departures 10 or objections to the presentence report are actually premature at this time, particularly 11 since factual reasons and the law may change or be refined before the sentencing date 12 (including a new guidelines manual may be in effect before that sentencing date). 13 However, the defendant believes that it may assist this Court in assessing the propriety 14 of the agreement by giving some notice of anticipated objections to the presentence 15 report, but that the defendant does not anticipate that any response or action is required 16 by the probation officer or the government at this time. 17
The defendant has primarily two areas of anticipated objections to the

18 presentence report, i.e., its 10- level increase in the guideline offense level for alleged 19 loss in excess of $500,000 (PSR ¶35), and its 2-level increase for "more than minimal 20 planning" (PSR ¶36). 21
Relevant facts are described in the presentence report, especially in paragraph 5.

22 The Navajo Nation contracted with codefendant Pat Chee Miller (recently deceased), 23 through his company PC & M, to construct and deliver modular units to the 24 Department of Social Services for Head Start and Day Care programs. The defendant, 25 the Director of Design and Engineering for the Navajo Nation, was approached by a 26 codefendant from the Department of Social Services a day or two before the deadline 27 28 2

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1 to obtain the funds for completion. Preliminary payments had been made to PC & M 2 on asserted progress toward those projects. Codefendant Ben-Henry asked Marianito if 3 he would sign the paperwork certifying completion of the projects so that the contract 4 funds would not be lost. Marianito asked to see the modular units and was told that 5 they were not on location because they were at the place of production, expected for 6 later delivery. Because the modular units were needed for very worthy reasons on the 7 Navajo Reservation, the funds were scheduled to expire September 30, 1999, and it 8 was on or about September 30, 1999, Marianito signed the certification. The guilty 9 plea admitted that he "signed and approved for payment an Application and 10 Certification for Payment of $102,436.00 for the fourth and final payment on Navajo 11 Nation Contract 99303, as amended." 12
Paragraph 35 adds 10 levels to the base offense level, claiming the defendant is

13 to be held responsible for loss on two government contracts, 99303 to which he pled 14 guilty and 99337 to which he did not plead guilty. Count 5 of the indictment alleged a 15 false certification for payment on contract 99337 in the amount of $124,751.00. Even 16 those two amounts together do not exceed $500,000. The presentence report noted that 17 the government has not provided a specific actual/intended loss figure, but referred to 18 some estimate from an unidentified "independent counting analysis" as $681,560.70 19 "relying upon a conservative assumption 70 percent of the contract work had been 20 completed." (PSR 35.) 21
It appears illogical that even if Marianito was to be held responsible for

22 payments authorized for a total of $227,187.00 on both contracts, that it could be 23 counted as a loss in excess of $500,000, or more. 24
U.S.S.G. § 2F1.1 was the apparently applicable guideline in 1998 and has since

25 been deleted by consolidation with § 2B1.1 in 2001. Even in 1998, loss was considered 26 to be "the value of the money, property, or services unlawfully taken[.]" U.S.S.G. § 27 28 3

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1 2F1.1, comment. (n.8). The more recent reference from § 2B1.1 considers "loss is the 2 greater of actual loss or intended loss." 2B1.1, comment. (n.3). The defendant did not 3 intend that the Navajo Nation or the United States government would suffer any loss, 4 rather his actions were in the nature of an effort to extend the deadline for the projects 5 delivery and installation at no additional cost. The defense is not aware of any actual 6 loss suffered by the United States Government and submits that whatever the loss 7 estimate or whatever alleged basis to measure a loss is inappropriate or inaccurate and 8 the government should be held to prove actual loss. Alternatively, when a loss 9 overstates the seriousness of a defendant's conduct, a downward departure may be 10 appropriate. U.S.S.G. § 2F1.1, comment. (n.11)(1998); 2B1.1, comment. (n.19(C)). 11 Hence, a departure would be appropriate in Marianito's case. 12
Likewise, an increase in the offense level for "more than minimal planning"

13 (PSR ¶36) is inappropriate in this case. The defense submits that the defendant's 14 conduct does not meet the definition or purpose of enhancement for "more than 15 minimal planning" as imposed by § 2F1.1(f) and described in § 1B1.1. Such definition 16 refers to repeated acts, but courts have held that two acts are insufficient, and at least 17 three acts are necessary. United States v. Bridges, 50 F.3d 789 (10 th Cir. 1994). United 18 States v. McCoy, 242 F.3d 399 (D.C. Cir. 2001). 19
Consequently, the defendant proposes the above objections upon the possibility

20 in the future that this Court would need to rule upon the accuracy of the presentence 21 report, if there was a failure in his supervision not permitting dismissal. 22 23 24 25 26 27 28 4
s\ Timothy C. Holtzen Timothy C. Holtzen Attorney for Defendant RESPECTFULLY SUBMITTED June 13, 2006.

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