Free Transcript - District Court of Arizona - Arizona

1

1 2 3 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA __________ UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) )

5 vs. 6 GLEN BECK, 7 Defendant. 8 9

CR 03-00890-PHX-JAT Phoenix, Arizona January 7, 2008 1:32 p.m.

REPORTER'S TRANSCRIPT OF PROCEEDINGS 10 (Hearing re: Petition on Probation) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Official U.S. Court Reporter: David C. German, RMR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC-39 Phoenix, Arizona 85003-2151 (602) 322-7251 PROCEEDINGS TAKEN BY STENOGRAPHIC COURT REPORTER TRANSCRIPT PREPARED BY COMPUTER-AIDED TRANSCRIPTION For the Defendant: Lawrence A. Hammond Attorney at Law Osborn Maledon, P.A. 2929 North Central Avenue Phoenix, Arizona 85012-2794 (602) 640-9000 BEFORE: APPEARANCES: For the Plaintiff: Darcy Cerow Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 (602) 514-7500 THE HONORABLE JAMES A. TEILBORG, JUDGE

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 1 of 22

2

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

Phoenix, Arizona January 7, 2008 (Proceedings convened at 1:32 p.m.) THE COURT: Thank you. Please be seated.
01:32:43

I'll ask the clerk to call the next matter, please. THE CLERK: Criminal Case 03-890, United States versus

Glen A. Beck, set for admit/deny hearing and possible final disposition hearing. Please announce your presence for the record. MS. CEROW: Good afternoon, Your Honor. Darcy Cerow
01:33:00

appearing on behalf of the United States. THE COURT: Good afternoon, Miss Cerow. Good afternoon, Your Honor. Larry

MR. HAMMOND:

Hammond on behalf of Glen Beck, who is here with me. THE COURT: All right. Good afternoon, gentlemen.
01:33:10

This is the time set for the admit/deny hearing, and I have read the defendant's objection to the Probation Office Memorandum and Sentencing Recommendation and also the Government's objections to the disposition report, but I -- I think it's worth stepping back for a moment to make sure I've got the right picture. At this point, as I understand it, there are still pending allegations A, B, C, D and E. dismissed, have they, Miss Cerow? MS. CEROW: Yes. The Court dismissed A, B and C on
01:34:22 01:33:57

None of those have been

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 2 of 22

3

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

December 10th. THE COURT: MS. CEROW: THE COURT: MS. CEROW: THE COURT: They were all dismissed at that time? Yes. All right. I checked the record to make sure. Okay.
01:34:27

Then the -- the exchanges here seem to be on the assumption that somehow there's some type of agreement between the parties that would somehow be binding on the Court, and I'm -- I don't think it's stated that way, but the defendant seems to take the position that if they don't have an agreement or understanding that the restitution is a hundred dollars a month then there's no deal. So I'm -- somebody is going to have to explain to me exactly where the issues are framed for today's hearing. Miss Cerow? MS. CEROW: Your Honor, as I see them, I had spoken
01:35:31 01:35:09

with counsel about what the Government would recommend for a disposition in this matter. I told him I would defer to the The
01:35:49

Court's judgment, that would be my recommendation.

probation officer has indicated in her disposition memorandum that she would like three months in custody. When Mr. Hammond and I spoke about that difference I explained to him two things: One, that Miss Spencer is an arm
01:36:08

of the Court and as an arm of the Court she has an obligation

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 3 of 22

4

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

to tell the Court what she thinks is a reasonable disposition, and while it is rare that we disagree, there are times when we disagree, the probation officer and the Government. it happened this morning in front of -THE COURT: That's not unprecedented actually. I'm
01:36:27

In fact,

shocked to hear any suggestion by defense counsel that somehow the Government and the probation officer are always or should always be in lock step. But, anyway, go ahead. MS. CEROW: The other thing that I explained to
01:36:44

Mr. Hammond is that Miss Spencer's recommendation has been consistent all along. When she was initially contacted

regarding this case by Mr. Hammond, I was at a meeting with -the three of us were in a meeting and I believe even at that meeting Miss Spencer indicated her desire that she thought that was the appropriate disposition. So Miss Spencer's position has been unchanged throughout the process. I have met with Mr. Hammond on several occasions, had several phone calls with him, e-mail messages, and based on my comments to the Court last time I was convinced that some of these allegations should be dismissed and I explained to the Court why that was so and that that was the most I could do and that I would defer to the Court's judgment regarding disposition.
01:37:36 01:37:16 01:37:02

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 4 of 22

5

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

So that's -THE COURT: What's the status regarding the

restitution, the amount of the restitution? MS. CEROW: The restitution issue, I agree with
01:37:45

Mr. Hammond in that it was not an issue raised in the revocation petition. Having said that, Judge Strand's order, I notice, requires that Miss Spencer review the restitution order every six months. She did receive the information from the FLU unit,

but I learned after the receipt of the disposition memorandum that Mr. Hammond had not received any information from the FLU unit, and it's my opinion that he should at least have an opportunity to discuss those figures before the Court makes a final restitution agreement -- or -- order. Having said that, I notice in Mr. Hammond's recommendation or objections that he indicates that the defendant saved -- I think it was $169 by having his daughter move into his apartment, $169 a month. to restitution. That should have gone

01:38:05

01:38:26

That savings that the defendant realized when
01:38:53

his daughter came to live with him on his rent should have been reported to Miss Spencer and then that she would -- I'm sure -she can answer for herself but I'm sure that she would have ordered that that savings go to restitution. THE COURT: But there's been no order by a judicial

officer as to the amount of the monthly restitution, has there?

01:39:12

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 5 of 22

6

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

MS. CEROW: THE COURT: MS. CEROW:

No, there has not. And shouldn't there be? I think it's better to have one, and the

law requires that the Court set it and then the probation -- you know, if it's not less than a hundred dollars and the probation officer finds out it could be higher, then we come back to the Court, but usually it's a not-less-than amount, and I always encourage that in restitution cases. THE COURT: All right.
01:39:43 01:39:25

Well, and my concern -- I'll let Mr. Hammond comment on it, but if there's any notion that an admission today carries with it a pre-ordained or stipulated amount of a hundred dollars, I'm not prepared to make that determination today. MS. CEROW: We've had no discussions about restitution

01:40:04

or the appropriate amount of restitution prior to Miss Spencer's disposition memorandum. It was not an issue So there

that was in the petition so we never discussed it. has been no conversation about a set amount at all.

Now, as I said, having read the objections, I think that that $169 that the defendant's saving should be added to his restitution. THE COURT: Well, I -- that would be approaching it I don't know from the big

01:40:24

kind of from the bottom end up.

picture standpoint what the fair amount is, and maybe it's --

01:40:41

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 6 of 22

7

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

maybe it is a hundred.

Maybe it's 500.

Maybe it's -- you

know, maybe it's a thousand. MS. CEROW:

I don't know.

And that's correct.

And if you recall, when we were here back on December 10th one of the reasons that I gave the Court for dismissing some of these violations was there was apparently some confusion. I'm not sure how broad that was. But regarding
01:40:55

financial statements and some financial statements were delivered to the probation officer but they were misplaced. We've never -- we, meaning the probation officer, has never been able to get a complete picture of the defendant's financial situation so that she could come up with what she considered to be a number that he could make every month and provide it for restitution, but she's never been able to do that simply because she's never had the documents until the petition was filed. THE COURT: All right. Okay. Thank you.
01:41:38 01:41:17

Well, Mr. Hammond, obviously, I've indicated my concern, particularly about restitution, but I want to make sure your client, if he is going to go forward with this, understands that there is no deal. I mean, the Government can
01:41:51

recommend what it recommends, but I want to make sure that that's clearly understood and in the process have you tell me what your client's position is as to what we should do today.
01:42:13

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 7 of 22

8

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

MR. HAMMOND:

Your Honor, my client's position may be

different right now than it was ten minutes ago, and let me respond to the Court and then tell you why. First of all, I intended to be clear, and I often am not as clear as I wish to be but I intended to be clear in the written matter that I filed with the Court, that I certainly understand and my client does that, as I said on page six of my response, the Probation Office is an arm of the Court. understand that the Probation Office has independent responsibilities to the Court. We understand that the Court
01:42:54 01:42:32

We

itself is going to make an independent judgment. If there was anything in my pleading that caused you to think otherwise, let me be clear that that was not our intention. We did not think that this Court was bound to do
01:43:16

any particular thing as long as it acts within the discretion of -THE COURT: There did seem to be a theme in your paper

as if your -- you and/or your client were chagrined, disappointed, shocked at the fact the probation officer might have a view different from the Government. MR. HAMMOND: And that -- and that is an inference I That seems to me to be a different
01:43:32

wanted the Court to draw. matter.

We were surprised that the Probation Office took the Memoranda, I say,
01:43:56

positions that it took in its memoranda.

because I now see that there's a second memorandum that was

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 8 of 22

9

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

just handed to me that I haven't had a chance to do more than glance at and my client hasn't seen. But, Your Honor, when we came into this proceeding and moving under Rule 32.1, as I believed we were, we were prepared, based upon our conversations both with Miss Cerow and with the probation officer, that we would waive an evidentiary hearing and would resolve these matters in the way in which we started to back on December the 10th. I thought then that I knew what the facts were and Miss Cerow, on behalf of the United States, confirmed the facts in the way that I thought was accurate and relevant to these proceedings. We now find in the probation officer's separate memorandum and sentencing recommendation that, in spite of the representations made by the United States, she takes a different view, and not only of the outcome but of what the facts are, and now we're presented with a situation that I had not anticipated, which is that there would be allegations of fact that remain unresolved. We thought we had resolved what the facts were. find that at least it's the probation officer's view, for instance, that we had not provided the financial information that Mr. Beck was required to provide, in spite of the fact that Miss Cerow represented that, in fact, the information had been -01:45:38 01:44:56 01:44:35 01:44:14

I now

01:45:16

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 9 of 22

10

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

THE COURT:

Why is that relevant and why -- why is

that issue relevant to allegation E that your client was, at least, coming in here today prepared to admit to? MR. HAMMOND: That's an excellent question, and I
01:45:57

think the answer is in the probation officer's memorandum and sentencing recommendation. If you look at her memorandum and at her, quote-unquote, justification, you will see that her justification for recommending that Mr. Beck be sent to prison for three months is based upon not just allegation E, which, after all, only has to do with notice with respect to an apartment, but her justification relates to the very items that have already been disposed of. Now, the Court could and we would suggest should completely disregard those things because they're not relevant to allegation E, but now we have them in a report from the Probation Office in the record with a request that the Court rely on that financial information, at least in part, in coming to a conclusion that this Grade C -- a single Grade C violation should result in incarceration. So that puts us in a much different spot than I thought we were when we started. Now, allow me to address the question you asked Miss Cerow with respect to the restitution amount. We did not say and I do not know how the impression

01:46:15

01:46:36

01:46:59

01:47:15

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 10 of 22

11

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

could have been created that the $100 amount is somehow locked in for the future. Quite to the contrary, that $100 amount can Judge We
01:47:42

be reconsidered, it should be reconsidered periodically.

Strand recommended that it be done on a six-monthly basis. are still prepared to go through that process. But what I found difficult, and I hope I was clear about this, and, frankly, found offensive was that the

Probation Office took it upon itself to provide to the Court information that we have never seen, information that the probation officer says she obtained from the Financial Litigation Unit in Tucson. We had not received anything from the Financial Litigation Unit in Tucson. We have been expecting, indeed
01:48:00

hoping that sooner or later we would get something so that we could address the question of what the restitution should be, but, as Miss Cerow just advised the Court, restitution has never been -- the amount of restitution has never been an issue in any of the conversations that we've had, it's not one of the listed allegations, but now we have in the record this conclusion from the probation officer that, in fact, Mr. Beck should have an extra $65,000 worth of net income, which is simply is not correct. So we are disturbed about that. The rule is very
01:48:38 01:48:17

clear that the defendant is entitled to receive all information, all evidence. We have not. I was prepared to say
01:48:59

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 11 of 22

12

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

to the Court, as I've tried to say in my memorandum, that if the Court were to disregard all of those things we could then move forward with what I hope would be the end of this proceeding. But there is -- but there is one other problem that continues to plague me, and that is that the probation officer, in our judgment, respectively, has misrepresented what the sentence was back in 2005 and what the recommendation of the Probation Office was back in 2005. material fact. The Probation Office did make, as I explained to the Court before, I think, two parallel recommendations, a Blakely recommendation and a non-Blakely recommendation, both of them coming out with probation, but importantly, the Probation Office made the recommendation that this matter be sentenced under the Blakely analysis, which would lead to a range of zero to six months, not 30 to 37 months. We then had a sentencing hearing at which Judge Strand concluded that he could do it either way but that it didn't matter, but then we -- because he was going to sentence to probation. And the Probation Office wanted that result.
01:50:24 01:50:02 01:49:19

And that becomes a very
01:49:42

There's no doubt about it on the record that the Probation Office wanted it to be clear. Well, you don't have those documents in the record right now, and what we have instead is a memorandum from the
01:50:40

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 12 of 22

13

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

Probation Office that says that the prior sentencing, but for the downward departure, would have been 30 to 37 months, which is simply not correct. And I think it makes a difference in terms of how this Court approaches the question now of its disposition with respect to allegation E. And finally, Your Honor, having received this document, and I don't know whether the Court has had a chance to read it but it was handed to me at 1:30 this afternoon by Miss Spencer, it purports to be -- it's entitled Response to Objections to the Disposition Report. I -- just glancing at
01:51:13 01:50:56

it, I know there are things in here that I significantly disagree with and that I know my client would as well. THE COURT: Well, we're still back to the lingering
01:51:33

question that I have, and that is, why shouldn't this Court -why shouldn't there be a restitution amount decided by this Court, a monthly amount? MR. HAMMOND: I think apart from this particular

proceeding restitution was not an issue raised, but the Court -- let me see if I can answer your question, Your Honor. The Court may reconsider the restitution amount apart from this matter. My understanding was that typically what
01:51:49

happens is the probation officer sits down with the probationer and they look at a number and they either agree or they disagree. If they disagree, the probation officer can come to
01:52:11

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 13 of 22

14

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

the Court. I still believe that that could happen. happened here. It hasn't

We've had no negotiation with respect to what No one has sat down with the records to
01:52:26

that amount should be. look at them.

But I don't have any objection to the Court being involved in that. decide that today. THE COURT: I have vigorous objection to you trying to I don't think you have a basis for -How much time do you need to be prepared
01:52:36

for an evidentiary hearing, Miss Cerow? MS. CEROW: THE COURT: On the restitution issue? On the whole issue. I mean -- I'm -- I've

still got -- I've still got an allegation E that is not the subject -- we're obviously not going to get an admission to it, so we need to have a hearing, don't we? MS. CEROW: I just asked Miss Spencer if she's
01:52:54

prepared to testify today on the allegations and she said yes. THE COURT: I don't have time today to conduct a

hearing today and I'm not about to with all the issues that are being wrangled over here, and I don't see much purpose in having a hearing unless we can also deal with -- of course, we can have the evidentiary hearing on allegation E and then set disposition and I guess at disposition then decide -- if there is a finding of violation, then at that time try to deal with the restitution issue as well.
01:53:32 01:53:06

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 14 of 22

15

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

MS. CEROW:

Your Honor, regarding the issue of

restitution, I would ask for time to bring in Mr. Sukenic. Mr. Sukenic was the original prosecutor in this case and knows the financial issues that were raised there, which I think will be brought up by counsel. I -- I'm certain that based on the
01:53:50

information Miss Spencer received that we can get the prosecutor from Tucson up here to testify. THE COURT: Step one, I guess, is to set the I don't know what
01:54:15

evidentiary hearing on the allegation E. else to do. You tell me.

MR. HAMMOND:

Your Honor, I would -- if we're going to I don't I

do this, I would like to have one evidentiary hearing.

know how long it will take to get the materials from Tucson. have no idea since they haven't been in touch with us at all. I don't know if it's going to take a document request of some kind or whether they'll do it voluntarily. idea. I just have no

01:54:31

But I would think if we put this out for 30 days or

something in that range I would assume that we can get all this resolved at one time. THE COURT: Well, we're still faced with -- aren't we
01:54:43

inevitably faced with an evidentiary hearing and then depending on the outcome of that maybe nothing further or maybe a disposition hearing? MS. CEROW: THE COURT: Yes. So I guess question one is how far out
01:54:58

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 15 of 22

16

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

should we set the evidentiary hearing? MS. CEROW: Your Honor, to assist in that, I would I'm scheduled to be out of I'll return on the
01:55:13

like to set it as soon as possible.

the office beginning the 19th of January. 11th of February.

I'd like to have this -- at least this

portion of this litigation completed before I go out. THE COURT: MS. CEROW: THE COURT: MS. CEROW: THE COURT: Before the 19th? Yes. Of January? Yes, if the Court's schedule can permit. Well, I don't have much -- let's see.
01:55:24

I'm not sure that's enough time for Mr. Hammond. MR. HAMMOND: Your Honor, I believe it's not, but I

would ask for one point of clarification that may make a difference. I raised the point about considering the issues
01:55:37

that you've already disposed of or the facts underlying those issues as in some way relevant to allegation E. If we're just

talking about the rental of the apartment, that's one kind of evidentiary hearing. If we're talking about all of the other
01:55:55

things that the Probation Office has identified in its justification, that's a different evidentiary hearing. THE COURT: Well, wouldn't that go to disposition, if

we ever reach disposition? MR. HAMMOND: I think it would, but it's highly
01:56:10

relevant, then, to what we put on in an evidentiary hearing.

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 16 of 22

17

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

THE COURT:

Well, isn't the evidentiary hearing on

allegation E simply whether or not he violated his supervised release in that particular? MR. HAMMOND: Well, let me ask the Court. My answer
01:56:25

to that, Your Honor, would be yes, it is irrelevant as long as you are going to consider it irrelevant for purposes of disposition. THE COURT: Well -But if you think you might consider

MR. HAMMOND:

things that are factual -- we believe are factually inaccurate that we have heretofore thought we were waiving an evidentiary hearing on, then I think we do need to hear 'em. THE COURT: Well, but, I mean -- I think you just

01:56:36

answered my question, but obviously you don't think you did. Allegation E is simply whether or not he violated condition number 3, which prohibits him from making major purchases, incurring any financial obligations or entering into financial contracts without the prior approval of the probation officer. That doesn't seem to implicate any of this other
01:57:13 01:56:53

stuff that you're talking about and that you're concerned about. If he is found to have violated allegation E, then it seems to me you are suggesting that when it comes to considering the disposition potentially the Court may be called upon to consider these other matters. Maybe at that point the

01:57:33

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 17 of 22

18

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

Government will say, no, we don't think you should consider them, and by its position on disposition takes them out of play. MR. HAMMOND: But I think the problem is that we don't I don't know what the
01:57:50

know the answer to that question today.

Government's position -- I know what the Government's position is with respect to the facts. I think the Government disagrees

with the probation officer's statement of facts, but I don't think that's the dispositive question. THE COURT: Well, all I want to set right now is the All I want to set right now is the
01:58:03

disposition -- I'm sorry.

evidentiary hearing on allegation E and whether or not he violated his supervised release. If he is found that he did,

then we've got to set a disposition hearing, I would think, that takes into account those factors, whatever they may be, that the Court should consider in disposition. MR. HAMMOND: Does that mean that we would then have
01:58:23

an opportunity for an evidentiary herring -THE COURT: Sure. -- on the disposition -01:58:32

MR. HAMMOND: THE COURT:

Yeah. -- separately from -And I think

MR. HAMMOND: THE COURT: that's -MR. HAMMOND:

That would be my take on it.

As long as --

01:58:40

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 18 of 22

19

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

THE COURT:

-- what you've been asking. As long as that's the case, then if

MR. HAMMOND:

we're talking about two evidentiary hearings if we want to have them at two separate times is okay, but between now and January 19 is not okay. THE COURT: I'm still in trial but let me -- Miss
01:58:50

Cerow, I'm not sure when you were saying you want to get it all done by the 19th you were thinking in terms of what I'm now perceiving as two different evidentiary hearings or whether we can just hold an evidentiary hearing with respect to allegation E and whether or not he violated his supervised release, if we can do that before the 19th, and Ms. Bengtson says we could on the 16th, and then, depending on the Court's finding, push over the disposition hearing to a time after you get back. MS. CEROW: THE COURT: Mr. Hammond? MR. HAMMOND: MS. CEROW: Just give me a moment, Your Honor. That's fine. Can we do this first hearing on the 16th,
01:59:34 01:59:12

Your Honor, we also have to address
01:59:46

allegation D, only because it was my understanding that the defendant was going to admit allegation E in return for the dismissing of A through D. THE COURT: MS. CEROW: THE COURT: Didn't we dismiss -- we dismissed -A, B and C. A, B and C. Okay. So I've been

02:00:02

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 19 of 22

20

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

misspeaking.

We need to do two evidentiary -- an evidentiary

hearing on two allegations, D and E. MR. HAMMOND: Your Honor, the -- I'm -- I'm -- now I'm If we're -- if we're simply
02:00:22

not entirely sure where we are.

talking about having a separate disposition evidentiary hearing at which we would be able to clear up these facts that are now, I think, inaccurate, our client when we made this agreement with Miss Cerow was prepared to admit allegation E. THE COURT: Allegation D. Allegation E. I'm sorry.

MR. HAMMOND: THE COURT:

02:00:44

Yeah. Allegation D is being dismissed pursuant

MR. HAMMOND: to the agreement.

As long as I'm sure that there is still going to be an evidentiary hearing with respect to disposition, I believe that the time it would take to do the admit/deny is very short, and that could be done on the 16th. It could be done at any time.
02:00:55

It could be done right now if the Court had time. THE COURT: Well, you're right. We don't have -- we
02:01:19

have not conducted an admit/deny on either D or E. MS. CEROW: THE COURT: That's correct, Your Honor. And, of course -- so I suppose what I -- I

suppose what I could and perhaps should do is simply enter denials on his behalf to D and E with the idea that on the 16th we set the evidentiary hearing, and if -- if -- if then your
02:01:40

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 20 of 22

21

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

client's position is at that evidentiary hearing I still want to admit D but contest E, we can do that, or you can put the Government to its proof on both D and E, again with the clear understanding that before disposition there will be as much of an evidentiary hearing as you reasonably want. MR. HAMMOND: MS. CEROW: THE COURT: That's fine with me, Your Honor.
02:02:13

That's fine. All right.

So then the Court will enter denials on behalf of the defendant as to allegations D and E and set for evidentiary hearing this matter on January the 16th at 9:30 a.m. Period. MR. HAMMOND: THE COURT: Fine.
02:02:27

All right. Thank you.
02:03:05

MR. HAMMOND: MS. CEROW: THE COURT:

Thank you, Your Honor. We're in recess.

(Proceedings recessed at 2:03 p.m.)

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 21 of 22

22

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

C E R T I F I C A T E

I, DAVID C. GERMAN, Official Court Reporter, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the proceedings and testimony reported by me on the date specified herein regarding the afore-captioned matter are contained fully and accurately in the notes taken by me upon said matter; that the same were transcribed by me with the aid of a computer; and that the foregoing is a true and correct transcript of the same, all done to the best of my skill and ability.

DATED at Phoenix, Arizona, this 19th day of January, 2008.

s/David C. German DAVID C. GERMAN, RMR, CRR

UNITED STATES Case 2:03-cr-00890-JAT Document 72 DISTRICT COURT Filed 01/23/2008

Page 22 of 22