Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

Cameron A. Morgan, Esq.

4295 North 75th Street Scottsdale, Arizona 85251 480-990-9507 Telephone 480-990-9509 Facsimile e-mail: [email protected] Arizona State Bar No. 006709
Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) vs. ) ) ANDREW TAYLOR, ) ) Defendant. ) __________________________________________)

NO: CR04-0809-PHX-NVW

MOTION TO EXTEND TIME IN WHICH TO FILE BILLING

Defendant, by and through counsel undersigned, hereby moves for the court to set release conditions pursuant to 18 U.S.C. § 3143(b). Defendant submits that he is not a person who is likely to flee or pose a danger to the safety of any other person in the community and that his appeal is not for the purposes of delay and raises substantial questions of law or fact likely to result in a reversal, order for new trial, sentence that does not include a term of imprisonment or a reduced sentence to a term of imprisonment less than a total of the time already served plus a the expected duration of the appeal process. This motion is supported by the attached Memorandum of Points and Authorities incorporated by reference herein.

Case 2:04-cr-00809-NVW

Document 124

Filed 01/27/2006

Page 1 of 6

SPECTFULLY SUBMITTED this 27th day of January, 2006.

/s/ Cameron A. Morgan Cameron A. Morgan Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES Defendant has been convicted of three counts of false declaration in bankruptcy in violation of 18 U.S.C. § 152(3), two counts of concealment in bankruptcy in violation of 18 U.S.C. § 152(1) and four counts of bankruptcy fraud under 18 U.S.C. § 157. He has previously filed a Motion for Judgment of Acquittal and Motion for New Trial which was denied by the court. For purposes of this motion the Defendant incorporates the arguments set forth in his Motion for Judgment of Acquittal and New Trial. Defendant is currently scheduled to surrender to the Marshal's office for detention on January 30, 2006. Defendant requests that the court grant him release conditions under 18 U.S.C. § 3143(b) because he is not likely to flee and does not pose a danger to the safety of any person or the community, his appeal is not for purposes of delay and raises substantial questions of law and may result in a reversal, order for new trial, sentence that does not include a term of imprisonment or will result in a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. With respect to the first condition of 18 U.S.C. § 3143(b), that the person is not likely to flee or pose a danger to the community, Defendant submits that he has been on release

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throughout the course of these proceedings, he has complied with all conditions of release imposed by the court and pre-trial services and has not committed any acts of violence. Defendant submits that his record in this matter establishes by clear and convincing evidence that he is not a flight risk or danger. Defendant submits that his case and the issues that he raised in his Motion for Judgment if Acquittal and Motion for New Trial raise substantial questions of law and/or fact. A substantial question under 18 U.S.C. § 3143(b) is one that is "fairly debatable," or one of more substance than would be necessary to a finding that it was not frivolous. United States v. Handy, 761 F.2d 1279 (9th Cir. 1985). With respect to counts 1 through 3, false declarations made in bankruptcy for failing to disclose previous bankruptcy filings in his Chapter 13 Petitions, the Defendant has argued that the failure to disclose was not material and the evidence failed to show fraudulent intent. In support of his materiality argument the Defendant cites the Supreme Court decisions of U.S. v. Gaudin, 515 U.S. 506 (1995) and U.S. v. Neder, 527 U.S. 1 (1999) for the proposition that the test for materiality is whether the statement or omission has a natural tendency to influence, or be capable of influencing, the decision of the decision making body to which it was addressed. The Defendant has argued that his prior bankruptcy proceedings were a matter of public record, he made no steps to conceal his identity, he was legally entitled to file multiple Chapter 13 Petitions, and neither the Bankruptcy Court nor Trustee have taken any actions to dismiss his prior or current Chapter 13 Petitions for nondisclosure. In response to the Defendant's argument the government states that the attorney for the Trustee testified that the bankruptcy trustee relies on the debtor's honest disclosure of

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prior bankruptcies filings. The government submitted no evidence that either the Trustee or the Trustees attorney did not know about prior filings at a time when it would have influenced any action that it might have taken. The Defendant also argued that he did not have fraudulent intent because all the parties had actual or constructive knowledge of the bankruptcy filing information. He also argues that the failure to list prior bankruptcies did not cause any financial loss or gain since if the petitions had contained the proper information the results would have been the same. The mere fact that the Defendant filed bankruptcy is not the crime; any financial loss or gain must be tied to the failure to disclose the prior bankruptcies. See U.S. v. Feldman, 338 F.3d 212 (3rd Cir. 2003). No such showing was made herein. With respect to count 4, failure to disclose a bank account, the government alleges that the Defendant opened a bank account the day after he filed his petition for chapter 13 and did not disclose that bank account on the schedules he filed approximately 2 weeks later. Defendant's contention is that the schedules require that he disclose property owned at the commencement of the case under 11 U.S.C. § 541, a view that was shared by the attorneys who testified at trial. The government appears to contend that the schedules needed to reflect property at the time that the Defendant submitted the schedule. This issue was vigorously debated by the parties prior to trial. With respect to count 6, the government alleged that the Defendant concealed property by failing to list it in his amended schedules. The amended schedules were filed by his attorney and were not signed by the Defendant. Defendant contended at trial that he had no duty to file the amended schedules and that he could not be charged for filings done by his attorney that he did not sign.

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With respect to counts 7 through 10, alleging a scheme to defraud by filing bankruptcy petitions and schedules, the Defendant has argued that there was no scheme, materiality and no knowledge concerning the amended schedules, primarily the same arguments set forth above. A primary concern in this area is whether the government's theory of the case, that the defendant filed multiple Chapter 13 proceedings for the purpose of frustrating his creditors, is legally cognizable where the defendant had the legal right to file his petitions and neither the bankruptcy court or trustee have ever taken any action against him in this regard. With respect to sentencing, Defendant disagreed with the pre-sentence report and submitted that he had an offense level of 8 with a criminal history category of 3 and a suggested sentencing range of 6 to 12 months pursuant to the guidelines. He challenged the loss calculations that added to the offense level claiming that he did not intend any loss nor did any of the alleged victims suffer any actual loss as a result of the alleged fraudulent statements or filings. He also challenged the criminal history computation arguing that one of his felony priors could not be counted because it was impossible to tell from the record whether the term of incarceration was served more than 15 years prior to the current offenses. Defendant incorporates the arguments set forth in his Response to the Government's Supplemental Sentencing Memorandum filed November 30, 2005 in this regard. In the event that the appellate court agrees with the Defendant then he would be eligible for a sentence of probation or a split sentence. Defendant submits that his positions involve substantial issues of law and fact within the holding of U.S. v. Handy, supra, that are fairly debatable and more than frivolous.

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Based on the foregoing, Defendant respectfully submits that he fulfills the criteria of 18 U.S.C. § 3143(b) and the court should grant him release conditions pending appeal in this matter. RESPECTFULLY SUBMITTED this 27th day of January, 2006. /s/ Cameron A. Morgan Cameron A. Morgan Attorney for Defendant FILED ELECTRONICALLY this 27th day of January, 2006, and copy electronically mailed to: John Lopez Assistant United States Attorney COPY of the foregoing mailed via US Mail and electronically this 27th day of January, 2006, to: Honorable Neil V. Wake U.S. District Court 401 W. Washington Phoenix, AZ 85003-2120 [email protected]

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