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

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Suite 201 Phoenix, Arizona 85007 3 Telephone: (602) 382-2727 4 MILAGROS A. CISNEROS State Bar # 020410 5 [email protected] Asst. Federal Public Defender 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. Bella Ben-Henry, Defendant. Defendant, Bella Ben-Henry, through undersigned counsel, respectfully United States of America, Plaintiff, No. CR 04-1018-PHX-JAT OBJECTIONS TO PRESENTENCE REPORT (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 submits the following objections to the presentence report: 1. Objection 1, Page 5 - Paragraph 18: Ms. Ben-Henry objects to the 17 18 rendition of some of the facts in paragraph 18 of the presentence report. Specifically, 19 she submits that all the modular units at issue in paragraph 18 were on-site; however, 20 they were not all set up and ready for occupancy. Ms. Ben-Henry respectfully 21 requests that paragraph 18 of the presentence report be amended to reflect this 22 information. 23 2. Objection 2, Page 6 - Paragraph 19: Ms. Ben-Henry objects to the 24 rendition of some of the events as described by co-defendant Frederick Marianito. 25 Specifically, she submits that she was not the individual who asked Mr. Marianito for 26 his signature on the pay requests. It is Ms. Ben-Henry's understanding that the 27 person who requested Mr. Marianito's signature was Pat Chee Miller. Ms. Ben28 Henry respectfully requests that the presentence report be amended accordingly.

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3. Objection 3, Page 7 - Paragraph 25: Ms. Ben-Henry objects to the

2 assertion by the case agent that Ms. Ben-Henry asked Mr. Marianito for his signature 3 because the architects of her division would not sign off on the forms. To begin, 4 there are no architects formally in Ms. Ben-Henry's division. Her division contracted 5 with a construction inspector by the name of Bob Wilson. Ms. Ben-Henry does not 6 know why Mr. Wilson was not involved here. Because Ms. Ben-Henry categorically 7 denies having been the individual who obtained the architect's signature, she is 8 unfamiliar with the specifics of why and how Mr. Marianito and Ed Preston became 9 involved. 10 4. Objection 4, Page 8 - Paragraph 33: The presentence report writer The 11 added ten levels to Ms. Ben-Henry's offense level computation, based upon the 12 specific offense characteristic set forth in U.S.S.G. § 2F1.1(b)(1)(K). 13 Commentary to Section 2F1.1 of the 1998 Sentencing Guidelines define loss as "the 14 value of the money, property, or services unlawfully taken." U.S.S.G. § 2F1.1, 15 commentary, at n.8. In 2001, section 2F1.1 was consolidated with section 2B1.1 and 16 loss is defined there as "the greater of actual loss or intended loss." U.S.S.G. § 17 2B1.1, commentary, at n.3. In this case, Ms. Ben-Henry had no intention that there 18 be a "loss" to any entity, nor did she "take" any "money, property, or services." 19 Rather, she acted in the interest that the children of the Navajo Nation would not lose 20 out on valuable infrastructure that, to her knowledge, was close to operable. To Ms. 21 Ben-Henry's knowledge, the vast majority­if not all­of the modular units at issue in 22 this case eventually went into operation. Accordingly, there was no loss. 23 Ms. Ben-Henry pled guilty to Count 3 of the indictment, pertaining to 24 the final payment under Navajo Nation contract number 99303. The false statement 25 to which she pled guilty related to an overpayment of $102,430.50. This was an 26 "overpayment" only insofar as the modular units at issue were not fully operable as 27 28 2

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1 of September 30, 1999. As noted in the presentence report, the government has not 2 specified an actual or intended loss figure, but has submitted to the probation office 3 an unidentified "independent accounting analysis" assessing the "loss" at 4 $681,560.70. PSR at ¶ 33. Ms. Ben-Henry submits, in the alternative to her primary 5 contention that there was no "loss" in this case, that, if there was "loss," the 6 application of the enhancement in U.S.S.G. § 2F1.1(b)(1)(K), in her case, is improper. 7 The Court of Appeals for the Ninth Circuit recently held that, when an 8 enhancement has a "disproportionate impact" on the ultimate sentence, the 9 enhancement must be established by clear and convincing evidence. United States 10 v. Staten, No. 05-30055, 2006 WL 2506386, at *11 (9th Cir. Aug. 31, 2006). Here, 11 the 2F1.1(b)(1)(K) enhancement has a disproportionate impact because, if Ms. Ben12 Henry were to only be assessed the amount to which she pled guilty, the enhancement 13 under 2F1.1(b)(1) would be a six-level enhancement. The 10-level enhancement (at 14 the low end) would almost double Ms. Ben-Henry's potential guideline sentence, 15 from 10 to 16 months (with six levels added) to 18 to 24 months (with 10 levels 16 added).1 Moreover, the 10-level enhancement puts Ms. Ben-Henry in Zone D, 17 whereas the six-level enhancement would put her in Zone C. This represents a 18 disproportionate impact. Accordingly, in order to assess 10 levels pursuant to 19 2F1.1(b)(1)(K), the Court would have to find, by clear and convincing evidence, that 20 Ms. Ben-Henry was responsible for "overpayments" to which she did not plead 21 guilty. The unspecified independent accounting analysis is insufficient to prove this 22 up adequately. 23 24 This calculation assumes that Ms. Ben-Henry is in Criminal History Category 25 I (as, in fact, she is) and that the enhancement for "more than minimal planning" applies, as assessed by the probation officer in the presentence report. Ms. Ben26 Henry objects, however, to the assessment of an enhancement for "more than minimal 27 planning." See Objection 5, infra. 28 3
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5. Objection 5, Page 8 - Paragraph 34: Ms. Ben-Henry objects to the

2 assessment of two levels for "more than minimal planning." As noted in the 3 commentary to Section 1B1.1 of the Sentencing Guidelines, "more than minimal 4 planning" means "more planning than is typical for commission of the offense in a 5 simple form. `More than minimal planning' also exists if significant affirmative steps 6 were taken to conceal the offense....`More than minimal planning' is deemed present 7 in any case involving repeated acts over a period of time...." U.S.S.G. § 1B1.1, 8 commentary n.1(f). The offense here is a false statement for which no acts that were 9 not "typical" for the commission of the offense were carried out by Ms. Ben-Henry. 10 "Significant affirmative steps" were not taken by Ms. Ben-Henry to conceal the 11 offense­her signature was affixed to the documents, for all to see. Moreover, the act 12 occurred during a short span of time in September of 1999­when she (and others) 13 feared that monies would have to revert back, instead of be used to help Navajo 14 children. 15 17 For the foregoing reasons, Ms. Ben-Henry respectfully requests that the 6. Objection 6, Pages 8 and 13 - Paragraphs 37, 40 and 71: 16 enhancement at paragraph 34 of the presentence report be deleted. 18 Depending on the Court's ruling on Objection 4, supra, the Adjusted Offense Level 19 (PSR at ¶ 37) and the Total Offense Level (PSR at ¶ 40) and the guideline range (PSR 20 at ¶ 71) may change. 21 22 23 24 25 26 27 28 4 Respectfully submitted: October 20, 2006. JON M. SANDS Federal Public Defender s/Milagros A. Cisneros Asst. Federal Public Defender

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1 Copy of the foregoing transmitted by ECF for filing this 20th day 2 of October, 2006, to: 3 DAN DRAKE Assistant United States Attorney 4 Two Renaissance Square 40 North Central Avenue 5 Suite 1200 Phoenix, Arizona 85004-4408 6 Copy faxed/mailed to: 7 CARLOS VALENTIN 8 U.S. Probation Officer 401 W. Washington Street 9 Phoenix, Arizona 85003 10 BELLA BEN-HENRY Defendant 11 12 s/Milagros A. Cisneros M. Cisneros 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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