Free Transcript - District Court of Colorado - Colorado

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 1 of 15

1

1 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 03-CR-00023-MSK

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 SCOTT LEE KIMBALL, 7 Defendant. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 1929 Stout Street, P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285 REPORTER'S TRANSCRIPT (Hearing Re Supervised Release Violation) _______________________________________________________________ Proceedings before the HONORABLE MARCIA S. KRIEGER, Judge, United States District Court for the District of Colorado, commencing at 4:04 p..m., on the 22nd day of May, 2006, in Courtroom A901, United States Courthouse, Denver, Colorado. APPEARANCES WILLIAM TAYLOR, Assistant U.S. Attorney, 1225 17th Street, Suite 700, Denver, Colorado, 80202, appearing for the plaintiff. ROBERT BERGER, Attorney at Law, 1408 Oneida Street, Denver, Colorado, 80220-2949, appearing for the defendant.

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 2 of 15

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

(In open court at 4:04 p.m.) THE COURT: Please be seated.

The Court is convened this afternoon in Case No. 03-cr-23. This is encaptioned the United States of America The matter is set down on a supervised

vs. Scott Lee Kimball. release violation.

Could I have entries of appearance, please. MR. TAYLOR: Good afternoon, your Honor. William

Taylor, Assistant United States Attorney, for the Government. THE COURT: MR. BERGER: Good afternoon. Robert Berger for Mr. Kimball; and he

appears in custody, your Honor. THE COURT: Thank you. Good afternoon.

As I indicated, we are here today on a supervised release violation report and a request by the Government that Mr. Kimball's supervised release be revoked and that he be sentenced to a term of imprisonment. This is based upon three alleged violations, all three Class C violations. Let me begin by asking Mr. Berger: Have you and your

client received and had adequate opportunity to review the violation report dated May 12, 2006, and the revised violation report dated May 22, 2006? MR. BERGER: THE COURT: We have, your Honor. And has the Government had adequate time

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 3 of 15

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

to review that as well? MR. TAYLOR: THE COURT: Yes, your Honor. Are there any additions or corrections to

the report or the addendum? MR. TAYLOR: Honor. MR. BERGER: The report as revised is accurate, and so Not by the Government. Thank you, your

we have no corrections or additions to make to it. THE COURT: Thank you. What is the defendant's

position with regard to the three alleged violations? MR. BERGER: Honor. THE COURT: Failure to report to the probation officer He would admit to those violations, your

as directed, the defendant admits that? MR. BERGER: THE COURT: residence? MR. BERGER: THE COURT: permission? MR. BERGER: THE COURT: Yes. All right. Then with an admission of Yes, your Honor. And also leaving the district without Yes. Failure to notify the officer of change in

those charges, the question is what is the appropriate sentence. What's the Government's position? Your Honor, the Government believes that

MR. TAYLOR:

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 4 of 15

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

the defendant should be sentenced to a period of imprisonment of 12 months, top of the guideline range. Your Honor, I'm I

making that recommendation in exchange for his admissions. think it is appropriate based on the defendant's history, criminal history, based on the fact that the defendant was

given a break by the Court pursuant to a 5K motion, and based on the facts surrounding the defendant's flight from the district and recapture in California. appropriate. I think that is

And I would ask that the Court put him back on

supervised release for the full number of months after he is released. THE COURT: months. MR. TAYLOR: I think that's right, your Honor. I think the only allowable time is 21

Actually it's -- actually it's 24 months, I think, your Honor, if the Court imposes 12 months. THE PROBATION OFFICER: If it's a 12-month sentence.

It's three years minus any term of imprisonment. THE COURT: All right. Thank you.

And what's the defendant's position, Mr. Berger? MR. BERGER: Your Honor, we would ask the Court to

impose the shortest jail sentence possible to be followed by putting Mr. Kimball back on an extended term of supervised release, which I guess could be up to three years minus whatever the shortest term of imprisonment is.

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 5 of 15

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

And, your Honor, I can -- You know, I was not Mr. Kimball's counsel at the sentencing and the other proceedings; but I think I know what went on here from reading through the file and talking with him and the probation officer. Mr. Kimball was placed on supervised release on He didn't have a problem on supervised So he made it almost

December 1, 2003.

release until the end of November, 2005. two full years with no problems.

In addition to that, your Honor, Mr. Kimball's case took a long time to get from the beginning to the sentencing hearing on December 1, 2003, and he was actually on pretrial release during -- he tells me a year before that, being supervised by the -- pretrial services. Prior to that, he was incarcerated. The judgment

shows, I believe, 412 days presentence confinement; so the case took a long time. But the point of all this is that

Mr. Kimball made it about three years on supervised release or pretrial supervision without violations and without problems. The Court ordered that he continue his mental health treatment at the time of sentencing. And what that treatment He wasn't in

turned out to be was simply taking medication.

group therapy or individual psychotherapy, and it appears that he wasn't monitored very closely by the doctor that prescribed him the medication. And he can speak to what happened to him;

but whatever the story is, the Court knows that he has mental

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 6 of 15

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

health problems, and they were supposed to be getting addressed during this time. And it appears that it worked for three

years, and then it stopped working. And Mr. Kimball did this stuff at the end of November, where he left town and didn't get -- didn't report when he was supposed to. And then he ran away on January 13. And that is He ran

what leads to Counts 1 and 2 that he just admitted to.

off from his residence and went out to California, where he was ultimately found and apprehended. So what I see here, your Honor, is a man who needs supervision and more supervision than he had before and mental health treatment and probably more mental health treatment than he had in the past. your Honor. And we've talked about this quite a bit,

And I would ask the Court that whatever term of

jail, confinement there is be followed by supervised release with a condition that Mr. Kimball start off in a halfway house so that he really has a lot of supervision at the beginning, at least -- and maybe he can make it this time -- and that a condition be that he really have mental health treatment that gets monitored a little more closely than it did in the past. So I guess if there is a 6-to-12-month range, then as a policy statement under the guidelines, the Court isn't really bound by that; but I suppose 6 months would be what we would ask for, if the Court is inclined to follow the policy statement in the guidelines, to be followed by this term of

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 7 of 15

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

supervised release for 30 months. THE COURT: MR. BERGER: THE COURT: MR. TAYLOR: THE COURT: to know? THE DEFENDANT: my actions. Thank you. Your Honor, I take responsibility for Thank you. Thank you. Anything else for the Government? No, thank you, your Honor. Mr. Kimball, is there anything you want me

And I would like to get whatever help I can to keep me from coming back to this -- this situation, this cycle that I'm in. It's not good for myself, it's not good for my family; so I

I'm not going to sit here and lie to you and make excuses.

had a lot going on in my life, and my medication was switched, and I didn't have a chance to get it properly monitored. I was

dealing with a custody issue with my children, a separation and divorce from my wife. job and my family. I had problems with my business and my

I made bad choices.

And that's all I have to say, your Honor. THE COURT: Thank you. Of

I'm going to announce sentence I intend to impose.

course, Counsel, you'll have an opportunity to make any further legal argument you'd like to make before I actually impose sentence here. This is before the Court on a request for revocation

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 8 of 15

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

of supervised release due to three supervised release violations. The original offense was premised upon conviction

of violation of 18 U.S.C. Section 513(a), making, uttering, and possessing a counterfeited security. Sentence was imposed with The

regard to that conviction on a downward departure.

original sentencing range guideline provision was 6 to 12 months of incarceration; and on a 5K1.1 motion, the Court departed downward to 3 months of incarceration served concurrently for the two counts for which the defendant was convicted. This matter is before the Court for violation of the conditions of supervised release which were imposed for a 3year period. The violations that were alleged here were a

failure to report to the probation officer as directed on January 23 and January 27; grade C violation, to which the defendant has admitted; a failure to notify the officer of a change of residence on January 13, 2006, also a Grade C violation to which the defendant has admitted, and leaving the district without permission on November 18, 2005, which also is a grade C violation, to which the defendant has admitted. The criminal history category here for Mr. Kimball is category IV, and the presumptive guideline range is 6 to 12 months of incarceration followed by three years less any time imposed upon revocation for supervised release. In determining what the appropriate penalty should be

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 9 of 15

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

for violation of supervised release, the Court is instructed by the provisions of 18 U.S.C. Section 3583(e). It requires the

Court to consider the factors set forth in 18 U.S.C. Section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)2(D), (a)(4), (a)(5), (a)(6), and (a)(7). provisions. The Court has considered those particular

Many of those are the same provisions which are

applicable at the time that a sentence is originally imposed. The probation department has requested incarceration of 15 months, the Government has requested incarceration of 12 months, and the defendant requests no longer than 6 months of incarceration and requests that that occur at a halfway house. In considering what is the appropriate penalty here, the Court considers the timing of the violations, the nature of the violations, the explanation that has been provided by defendant's counsel related to mental health treatment and perhaps the lack of effectiveness of prescription drugs to assist the defendant and considers such other information as may be important in evaluating and considering the various factors that are statutorily referred to. What strikes me here are several things. First of

all, the violations that have occurred here have to some degree been clustered over a relatively short period of time beginning in November of 2005, and culminating at the end of January, 2006. The violations are attributed in part by the defendant

to his marital difficulties, stress in his business, and

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 10 of 15

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

perhaps the lack of effectiveness in the mental health treatment that he was receiving; but what concerns me is there is a level of deception that is similar to the kind of deception we saw on the original conviction. The original

conviction was making, uttering, and possessing a counterfeited security. That's fraud. And the circumstances surrounding

these violations have to do with, in November at least, false statements and an overt attempt to hide behavior. What concerns me is the statement by the probation officer that the defendant not only left the district without permission but went to some lengths to hide the fact he was leaving the district without permission and after the fact made representations to the probation officer that he had not left the district without permission, indeed, providing two receipts from stores in the Denver area dated November 21, 2005, to try to convince me that he was actually in the Denver area. It was

after the defendant left the probation officer's office that the officer contacted the Bureau of Immigration and Customs at Denver International Airport, who confirmed that the defendant had purchased a round-trip airline ticket leaving Orange County, California, on November 21, 2005, in route to Denver, Colorado. The officer confirmed that the defendant was on the

return flight from Denver to Orange County, California, which left Denver on November 22. The officer goes on and says that the officer was not

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 11 of 15

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

able to confront the defendant regarding the unauthorized travel out of the district until December 28, due to his involvement in a car accident earlier in the month. And when

he reported to the probation office on December 28, he ultimately admitted to traveling during Thanksgiving week to his brother's residence in California. He said he made an

impulsive decision to travel without first getting permission to travel. He noted that on his November, 2005 monthly

supervision report that he had submitted on December 28, 2005, that had he travelled out of the district without permission. Now, what concerns me particularly about this episode is one could characterize it as impulsive. characterize it as fundamentally dishonest. One could also It's one thing to

move and not advise the probation officer of where you're going. It's another thing to try to mislead the probation

officer into believing that you have not travelled when you, indeed, did travel outside the district without permission. I also am concerned that the defendant is under investigation by the Lafayette Police Department for new felony charges concerning counts of check fraud, seven counts of theft, $500 to $1,500, and two counts of insurance fraud. These charges apparently arise from allegations that the defendant intercepted mail from a doctor who occupies an office in the same building the defendant's mother operates -where the defendant's mother operates an insurance company.

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 12 of 15

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

And according to the investigating officer, the defendant allegedly obtained information regarding the doctor's bank accounts and misappropriated approximately $83,000 from the accounts. Now, these are simply charges, and they are not the basis of a violation; but they do give some context to the Court's concerns about fraudulent behavior. Under these circumstances, I want to be sure that Mr. Kimball receives the kind of supervision he needs and the medical care he needs; but I am cognizant of the Court's obligation to protect society from future violations of the law by Mr. Kimball. I'm cognizant of the obligation under 3553(a) And if

to impose a sentence that promotes respect for the law.

every defendant were able to say to me, "The only reason I broke the rules, violated my conditions of supervision, or broke the law is because my medication wasn't working or I had a number of stressors in my life," all of which may be true, then no one would be held accountable for their behavior under any circumstances. I do not think this is as simple as the probation department would recommend of simply imposing a significant incarceration period of 15 months, nor do I think it is as simple as the defense would argue that all Mr. Kimball needs is supervision and it can be best accomplished in a halfway house. I think we are looking at a situation that needs a

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 13 of 15

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

number of different aspects addressed over a graduated process; and therefore, I intend to impose the following sentence: 10 months in jail, 6 months in a halfway house as part of supervised release, which runs for a period of 26 months. During the halfway-house-supervision period and during the period of time that Mr. Kimball is on supervised release, he would participate in a program of mental health treatment as directed by the probation officer until and unless he is released from the program by the probation officer. In

addition, he would remain medically compliant with any prescribed medications. And the probation officer would be

authorized to release psychological reports and/or the presentence report and the violation report to the treating agency or professional in order to ensure continuity of treatment. Is there any further argument for the Government? MR. TAYLOR: THE COURT: MR. BERGER: No, thank you, your Honor. For the defense? Can I have one moment?

(Discussion off the record between defendant and Mr. Berger.) MR. BERGER: THE COURT: No questions, nothing to add. Thank you.

Then based upon the previously made

findings and supplementing those, I find that the defendant has violated the conditions of supervised release as alleged in the

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 14 of 15

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

probation officer's petition. It is ordered and adjudged that the supervised release is revoked. The defendant is sentenced to 10 months of incarceration, 26 months of supervised release, 6 months of which will be spent in a halfway house. During the period of

supervised release, all prior standard and special conditions will apply. In addition, the defendant will participate in a program of mental health treatment as directed by the probation officer until such time as he's released from the program by the probation officer. He will remain medically compliant with And the probation

all -- in taking all prescribed medications.

officer is authorized to release psychological reports and the presentence report and the violation reports to the treating agency or professional for continuity of treatment. Mr. Kimball, I advise you of your right to appeal this sentence. If you desire to appeal, a notice of appeal must be

filed with the Clerk of the Court within ten days after entry of the judgment, or you lose your right to appeal. Ordinarily,

Mr. Berger would file the notice of appeal for you; but if he is unable to or unwilling to and you so request, I will direct the Clerk of the Court to immediately prepare and file a notice of appeal on your behalf. Anything further to bring before the Court?

Case 1:03-cr-00023-MSK

Document 74

Filed 05/23/2008

Page 15 of 15

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

MR. TAYLOR: MR. BERGER: THE COURT:

No, thank you, your Honor. No, thank you, your Honor. Then the defendant will be remanded to the And I would ask after we recesses here

United States Marshal.

to see counsel and the probation officer in chambers. We'll stand in recess. (Recess at 4:33 p.m.) * * * * *

REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. at Denver, Colorado, this 23rd day of May, 2008. Dated

S/Paul A. Zuckerman Paul A. Zuckerman