Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cr-00153-LTB-04 UNITED STATES OF AMERICA, Plaintiff, v. 4. ROBERT J. SIGG, Defendant.

GOVERNMENT'S RESPONSE TO MOTION FOR EARLY TERMINATION OF PROBATION

The United States of America, by and through Assistant United States Attorney Matthew T. Kirsch, opposes defendant Sigg's Motion for Early Termination of Probation [Doc. # 477] for the following reasons: 1. On February 17, 2005, after the defendant pled guilty to bank fraud in violation of Title 18, United States Code, Section 1344, the Court sentenced the defendant to a period of time served to be followed by five years of supervised release. The Court's Judgment [Doc. # 279] noted that the sentence was a departure from the advisory range recommended by the Sentencing Guidelines, and that the departure was based on a Section 5K1.1 motion filed by the government reflecting the defendant's provision of substantial assistance to the government in the investigation and prosecution of others. Id. at p. 8. The Judgment also noted that

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the Court had expressly considered the sentencing factors listed in Title 18, United States Code, Section 3553(a) in fashioning its sentence. Id. 2. On July 14, 2006, the defendant filed his Motion for Early Termination of Probation [Doc. # 477]. The motion notes that the defendant has complied with all terms of his supervised release, that he provided substantial assistance to the government, and that his role in the offense was minor. The motion also asserts that the Section 3553(a) factors support his request for early termination. 3. Supervised release may be terminated early if a court, "after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." 18 U.S.C. § 3583(e)(1). The Tenth Circuit has not addressed what showing a defendant must make concerning his conduct and the interest of justice to be considered for early termination. Among courts that have considered this question, both in this context and in the context of similar motions for early termination of probation, the majority rule appears to be that "mere compliance with the terms of probation or supervised release is what is expected of probationers, and without more, is insufficient to justify early termination." United States v. Caruso, 241 F. Supp.2d 466, 469 (D.N.J. 2003) (collecting cases); see also United States v. Miller, 205 F.3d 1098, 1100-01 (9th Cir. 1999); Karacsonyi v. United States, 152 F.3d 918 (Table), 1998 WL 410273,

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*1 (2d Cir. 1998) ("Full compliance, after all, is merely what is expected of all people serving terms of supervised release."); United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997); United States v. United States v. Paterno, 2002 WL 1065682, *2 (D.N.J. Apr. 30, 2002) (collecting cases); United States v. Yung, 1998 WL 422795, *1-*2 (D. Kan. June 12, 1998); Perlmutter v. United States, 1989 WL 97829, *2 (S.D.N.Y. Aug. 17, 1989). Instead, courts have usually required a demonstration of "changed circumstances, such as exceptionally good behavior." Caruso, 241 F. Supp.2d at 468; but see United States v. Gainer, 936 F. Supp. 785, 786 (D. Kan. 1998) (granting early termination request without requiring demonstration of changed circumstances); United States v. Schuster, 2002 WL 31098493, *1 (S.D.N.Y Sept. 19, 2002) (same). 4. Here, there has been no demonstration that the defendant has done anything other than comply with the terms of his supervised release. His initial sentence already accounted for his minor participation in the charged offense as well as the substantial assistance he provided to the government. There is nothing before the Court to suggest that the Court's initial sentence, which was based on the advisory Guidelines and Section 3553(a)'s factors, did not properly take into account these factors or should otherwise be modified. The defendant still stands convicted of the serious offense of bank fraud. See 18 U.S.C. § 3553(a)(1). If the petition for early termination is granted, the defendant would have served less than half of his

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five-year term of supervised release. A sentence of this length would not reflect the seriousness of the offense, would not sufficiently promote respect for the law, would not provide just punishment for the offense, and would not afford adequate deterrence to criminal conduct by others. See id. § 3553(a)(2)(A) & (B). 5. Finally, the government has spoken with the defendant's supervising probation officer concerning this motion. Based on that conversation, it is the government's understanding that the defendant does not meet the probation office's standard criteria for recommending early termination because of his relatively high score on an index used to predict the likelihood that he will re-offend. This fact implicates the need to protect the public, id. § 3553(a)(2)(C), and the need to continue to provide the defendant with supervision as a type of correctional treatment, id. § 3553(a)(2)(D). THEREFORE, the government respectfully requests that the Court deny the defendant's Motion for Early Termination of Probation.

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Respectfully submitted this 9th day of August, 2006, WILLIAM J. LEONE United States Attorney

s/ Matthew T. Kirsch MATTHEW T. KIRSCH Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Facsimile: 303-454-0402 email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO MOTION FOR EARLY TERMINATION OF PROBATION with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Dennis J. Jacobson, Esq. [email protected] and I hereby certify that I have served the document or paper to the following nonCM/ECF participant via mail: Senior United States Probation Officer Gary Phillips 1929 Stout Street, Suite C-120 Denver, CO 80294

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected]

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