Free Sentencing Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona BILL C. SOLOMON Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 020012 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 04-0489-PHX-SRB Plaintiff, v. James David Snow, Defendant. The United States of America, through undersigned counsel, submits the following GOVERNMENT'S SENTENCING MEMORANDUM

15 Memorandum in support of the plea agreement requesting a 24 month deferred sentence: 16 17 18 Factual Background On December 19, 2005, defendant entered a guilty plea pursuant to a stipulated MEMORANDUM

19 deferred sentencing plea agreement. Under the agreement, the parties requested the Court 20 defer sentencing for a period of 24 months. During that time, defendant agrees to follow a 21 program of supervision, and abide by certain conditions. In the event defendant willfully 22 violates the conditions of the agreement, the Court may sentence defendant on Count 1 of the 23 Information. 24 On February 27, 2006, the original sentencing date, the Court expressed concern about

25 accepting the deferred sentencing agreement. In light of the information contained in the 26 Presentence Investigation Report (PSR), the Court ordered the parties to submit written 27 memoranda to support their request for a deferred sentence. This is the government's 28 memorandum.

Case 2:04-cr-00489-SRB

Document 50

Filed 03/27/2006

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1 Evidentiary Issues 2 Given a variety of evidentiary issues, the United States requests a deferred sentence in

3 this case. First, this case arose when, on April 29, 2003, the United States Marshals Service 4 Fugitive Task Force executed a Maricopa County Superior Court warrant for defendant's 5 arrest. On that date, Maricopa County Probation Officer Bill Harkins led deputies to 13017 6 N. 30th Street, in Phoenix. Officer Harkins informed deputies that location was defendant's 7 last known address. Officer Harkins had obtained information from defendant's step-father 8 that defendant was living at that address. In addition, when the task force arrived at the 9 address, Officer Harkins told deputies that a vehicle parked in the driveway belonged to 10 defendant. Once inside the residence, Officer Harkins directed a search during which various 11 firearms were located. Defendant was arrested following the search. 12 Subsequent to defendant's arrest, Officer Harkins was shot and sustained serious

13 injuries while executing an unrelated probation warrant. At the time the parties entered the 14 plea agreement, Officer Harkins was unable to testify at trial. After recently speaking with 15 the case agent, it is undersigned counsel's understanding that Officer Harkins is still unable 16 to testify in court due to his injuries. 17 Second, the reports authored in connection with defendant's arrest contain

18 discrepancies as to where firearms were located and which firearms were taken into 19 evidence. One report indicates that in the bedroom where defendant was sleeping, there were 20 three rifles in a corner. But the same report lists two shotguns and only one rifle taken into 21 evidence from that corner. The report also indicates there were two guns in the closet, and 22 that when the deputy went to secure the guns, he found the sawed-off shotgun in the closet. 23 However, the report only lists two guns from the closet, one of which was the sawed-off 24 shotgun, as being taken into evidence. The reports also indicate that deputies took two Iver 25 Johnson, .32 caliber revolvers into evidence. However, only one Iver Johnson revolver, 26 which defendant admits he possessed, is actually in evidence. 27 Third, when deputies searched defendant's residence, they did not question Corey

28 Mauldin or Jeremy Talarico, who were present during the search, regarding the firearms. 2
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1 Corey and three other individuals have submitted sworn affidavits regarding the firearms. In 2 sum, the statements indicate that on the afternoon before defendant's arrest, a group of five 3 young men (defendant was not with the group) went into the desert near Bartlett Lake to go 4 target shooting. The statements indicate the group took approximately ten to twelve firearms 5 with them. The statements indicate that when the group returned, the guns that deputies say 6 they found in defendant's bedroom were actually placed in the bedroom of Jeremy Talarico, 7 who was present during the search. One of the statements also indicates that the sawed-off 8 shotgun belonged to Talarico. While these statements only affect relevant conduct, they are 9 an additional reason the parties reached the deferred sentencing agreement. 10 Finally, although forensic analysis may have provided definitive evidence as to who

11 possessed the firearms found in the residence, the firearms were not preserved for forensic 12 analysis. Because the firearms have now been handled by numerous individuals, no reliable 13 fingerprint or DNA analysis can be done. 14 Defendant's Criminal History 15 Defendant has a relatively extensive criminal history for a man his age. But most of

16 his criminal history consists of juvenile adjudications and misdemeanor convictions. 17 Defendant does have one prior non-violent felony conviction. He was most recently 18 convicted of various misdemeanors in Scottsdale City Court on May 16, 2005. However, the 19 conduct leading to those convictions took place in 2003, just over a month before his arrest in 20 this case. 21 In addition to his extensive criminal history, defendant has demonstrated a past

22 inability to comply with conditions of probation/parole. But in the face of that history, 23 defendant has complied, for almost a year, with his conditions of pre-trial release in this case. 24 On May 11, 2005, defendant was released to his mother as a third party custodian. On 25 August 17, 2005, this Court modified his conditions of release by releasing defendant on his 26 own recognizance. Since that time, defendant has continued to comply with all pre-trial 27 release conditions. In addition, defendant has maintained his current employment at E28 3
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1 Telecare Global Solutions since August 2004. As evidenced in paragraph 44 of the PSR, 2 defendant's employer considers him a valuable member of the team. 3 Unlike past opportunities to comply with court-ordered conditions, defendant now

4 faces a stiff penalty if he fails to comply with the terms of the deferred sentencing agreement. 5 As noted above, in the event defendant fails to comply with the terms of the agreement, this 6 Court may sentence him on Count 1 of the Information. As set forth in the PSR, he faces a 7 substantial prison term should that happen. 8 Conclusion 9 Given the evidentiary issues with the government's case, along with defendant's

10 compliance with pre-trial release conditions, the government believes that acceptance of the 11 deferred sentencing agreement would serve justice and is in the best interest of the parties. 12 For the foregoing reasons, the United States respectfully requests this Court accept the 13 deferred sentencing agreement and defer sentencing in this case for a period of twenty-four 14 months. 15 16 17 18 s/Bill C. Solomon 19 20 21 22 23 24 25 26 27 28 4
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Respectfully submitted this 27th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

BILL C. SOLOMON Assistant United States Attorney

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Mark S. Iacovino

CERTIFICATE OF SERVICE
I hereby certify that on March 27th,, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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s/Bill C. Solomon

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