Free Reply - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 West Adams, Suite 201 3 Phoenix, Arizona 85007-2730 Telephone: (602) 382-2755 4 DOUGLAS A. PASSON, #017423 5 EMAIL: [email protected] Public Defender 6 Asst. FederalDefendant Attorney for 7 8 9 10 11 12 13 14 15 16 17 18 19 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, No. CR-04-378-PHX-SRB Plaintiff, DEFENDANT'S REPLY TO vs. GOVERNMENT'S RESPONSE TO OBJECTIONS TO PRESENTENCE Scott Segal, REPORT Defendant. Defendant Scott Segal, by and through undersigned counsel, Douglas A. Passon, hereby offers the following reply to the response filed by the government concerning the Defendant's objections to the draft presentence report. I. Alleged NFA Weapons (PSR ¶¶ 10, 11 & 21). Although the government concedes that the ATF only conducted a "visual inspection" of the alleged NFA weapons, it argues that "the weapons, by their

21 nature and configuration, clearly met individual definitions of NFA weapons and did 22 not required further testimony." Government's Response at 2, ll. 14-16. The 23 defendant continues to dispute these assertions. The government focuses it's claim that this offense involved a firearm 24 25 described in 26 U.S.C. § 5845(a) on the "smooth bore pistol" that was introduced at 26 trial. Again, there has been no evidence that this item meets the legal definitions set 27 forth in 26 U.S.C. § 5845(a) and (e). In fact, the relevant statutory language is more 28 narrow and specific than the government has set forth. The pertinent language of subsection (e) refers to "a pistol or revolver having a barrel with a smooth bore

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1 designed or redesigned to fire a fixed shotgun shell." 26 U.S.C. § 5845(e)(emphasis 2 added). Thus, even if the weapon indeed has a "smooth bore" the inquiry does not 3 end there. The government must still prove1 that the weapon was "designed or 4 redesigned to fire a fixed shotgun shell." 5 This item, not surprisingly, is a collector's item that is approximately forty 6 or more years old. There is no evidence that this item was designed to fire fixed 7 shotgun shells. There is no evidence that there were any modifications (i.e. that the 8 9 10 11 12 13 14 15 16 17 18 weapon was "redesigned) made to the item that would render it capable of firing fixed shotgun shells. In fact, there has been no evidence presented that this weapon is even capable of firing a fixed shotgun shell or that there is any fixed shotgun shell in existence that would fit this weapon. Even if the government were able to meet its burden on all of these issues, it would still be unable to prove that Mr. Segal knew the features of the firearm that ran afoul of the pertinent statutes pursuant to Staples v. United States, 114 S. Ct. 1793, 1804 (1994). II. Mr. Segal's Prior Conviction For Possession of an Unregistered Silencer A. Huffines Should Not Control The Outcome Of This Case. Mr. Segal concedes that United States v. Huffhines, 967 F.3d 314 (9th Cir.

19 1992), appears to address the issue at hand. However, the defendant asserts that this 20 case was wrongly decided. A recent case has drawn the reasoning of that case into
th 21 question. In United States v. Fish, 368 F.3d 1200 (9 Cir. 2004), the Court held that 22 a prior conviction for unlawful possession of a destructive device was not a "crime

23 of violence" pursuant to U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a). 368 F.3d at 1201. 24 25 Per the defendant's previous pleadings, all of these issues must be proved by at least clear and convincing (because it raises the base offense level by six levels) 27 and at most beyond a reasonable doubt. This enhancement cannot be sustained under 28 any burden. 26 2
1

In that case, the defendant was previously convicted of possessing a pipe bomb. Id.

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1 at 1202. The court held that the mere possession of the destructive device would not 2 constitute a crime that "otherwise presents a serious potential risk of physical injury 3 to another." Id. at 1204-05. 4 Although, the Court's rationale was based on principles of statutory 5 construction and focused on the inclusion of the term "use" of explosives in the 6 language preceding the catchall, it is difficult to reconcile this outcome with the 7 Huffines case. The pipe bomb is a destructive device which, like the silencer is an 8 item that Congress has deemed necessary to regulate because of its inherent danger 9 and lack of lawful purpose. However, the Fish court ignored the supposed intent of 10 Congress and instead focused on the distinction between mere possession and actual 11 use. It defies all logic to say that Congress would exclude the possession of 12 destructive devices from the definition of crimes of violence, but would then include 13 the mere possession of other, far less dangerous items in the definition. 14 Moreover, Fish amplifies the argument that the definition of the catchall 15 phrase is subject to far more limitations than the Huffines court was willing to impose. 16 The catchall cannot fairly be interpreted as containing a prohibition against the "mere 17 18 possession" of a prohibited item where every other definitional clause in 4B1.2(a) 19 requires that the defendant commit an affirmative act that inherently involves the use 20 of force or the serious potential for use of force. No one can dispute the fact that the 21 enumerated offenses that proceed the catchall indeed involve the "serious potential 22 risk of physical injury to another." Burglary of a dwelling inherently presents the risk 23 of violent contact with residents of the dwelling. Arson inherently presents the risk 24 that people could be injured or killed by the defendant's conduct of lighting a fire. 25 Extortion involves the inherent risk that a defendant will use force to further his 26 conduct of threatening an individual to obtain money or some other benefit. None 27 of these enumerated acts involve passive possession on the part of the defendant. 28 3

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1

In United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988), the Ninth

2 Circuit examined the language and legislative history of the catchall.2 The Court 3 noted that the relevant provision was born out of Congress's desire to include the 4 "most serious of property offenses" to the list of violent crimes and that the catchall 5 had to be "construed narrowly and applied only to those categories of offenses which 6 clearly meet the statutory test." Id. at 1010-11. The Court noted that Congress did 7 not provide any examples of crimes it intended to include in the catchall and went on 8 to provide two examples of crimes that, according to its analysis, would constitute 9 offenses under the catchall clause ­ manslaughter and kidnaping. Id. at 1009. The 10 court explained that although manslaughter does not include physical force as a 11 categorical element of the offense, it is still a crime that "by its nature" involves the 12 death of another person and is "highly likely to be the result of violence." Id. 13 Likewise, violence is not necessarily an element of kidnaping, but the court 14 concluded that because the offense entails a "serious potential risk of physical injury" 15 to the victim, it is a violent felony under the catchall. Id. This analysis is, of course, 16 in full accord with the kinds of acts that precede the language of the catchall 17 18 (burglary, arson, extortion). 19 It is even more troubling that the rationale of Huffines ignores a 20 fundamental, uncontested fact in this matter: that Mr. Segal possessed the silencer 21 because of his intense love for collecting all things gun-related and had no intention 22 of ever using the item for any unlawful, violent, or dangerous purpose. The reality 23 is that notwithstanding the Huffines rationale that "a silencer is of practically no use 24 except for a criminal purpose", there was absolutely no criminal purpose or risk25 creating conduct involved in the prior conviction here. Of course, the "categorical 26 27 Although Sherbondy addressed the language in 18 U.S.C. § 924(e)(2)(B), that 28 language is almost identical to the language in §4B1.2(a). 4
2

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1 approach" virtually precludes any inquiry into the true facts of the case. This 2 approach is supposed to protect the defendant by requiring that the offense contain 3 elements that meet the "statutory test". Consequently, Huffines constitutes a serious 4 breach of the defendant's due process rights by inserting an imaginary categorical 5 element of "serious potential risk " into the mere possession of a prohibited item. 6 Obviously, Congress could not enumerate every possible crime that might 7 qualify as a crime of violence. That, of course, is the reason for the catchall. What 8 is clear, however, is that Congress sought only to reach specific affirmative acts 9 committed by a defendant which, by their very nature, create a very real and very 10 serious potential risk of physical injury to another. It cannot fairly be said that mere 11 possession of a silencer categorically creates such a risk. In short, Huffines was 12 wrong. 13 B. Even if Huffines Controls, This Court Should Exercise Its Discretion To 14 Decline the "Advice" Of the Guidelines. 15 This type of situation is a classic example of the imperative of having 16 advisory guidelines. If Mr. Segal were a dangerous individual or if his prior 17 conviction for possession of silencer truly entailed an inherent risk of harm (for 18 example in the Huffines case where the defendant was suspected of stalking, he had 19 previously been convicted of mailing a poisoned pie to an individual and the 20 suppressor was actually found attached to a gun), then the six-level enhancement for 21 22 23 24 25 26 27 28 the prior might be justified. In this case, however, the imposition of a six-level enhancement grossly overstates the seriousness of the prior conviction. Given all of the circumstances in this case, regardless of current case law, the Court must choose to decline the advice of the guidelines concerning the base offense level calculation. III. Joke Concerning Placement of Mines (PSR ¶ 15). The information in this paragraph pertains to a joke allegedly told by Mr. Segal approximately seven or more years ago. The government's argument that this 5

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1 information is pertinent given that he possessed materials that could be used to set up 2 booby traps and he has proven he will go to great lengths to keep his guns is 3 disingenuous. 4 The government is aware that Mr. Segal has absolutely no history of violent 5 behavior. The government is also aware that there is no evidence that Mr. Segal ever 6 used or intended to use any of the explosive materials to cause harm to any 7 individual. If the government had any evidence that Mr. Segal had planned to use 8 any item for harmful purposes it would have charged him with possessing destructive 9 devices. Mr. Segal has had numerous contacts with ATF agents who not only tried, 10 but succeeded in taking his guns. Never once was there even the slightest hint that 11 Mr. Segal would resort to violence to stop ATF from performing their job. To the 12 contrary, he has always been respectful and cooperative. 13 The items that the government would now like this Court to view as 14 potential weapons of mass destruction are items that anyone who is not a prohibited 15 possessor is free to own. They are items according to testimony at trial, that possess 16 no greater explosive power than a bullet. If these items have such deadly potential, 17 18 perhaps the government would like to explain why they were brought to court in a 19 cardboard box bouncing around the front seat of Agent Waltenbaugh's personal 20 vehicle. Perhaps the government would like to explain why Agent Waltenbaugh 21 assured this Court that these items could be handled with no safety risk at all to 22 witnesses or jurors. In fact, the court might even recall Agent Waltenbaugh 23 accidentally dropping one of the items while testifying about it to the jury! It is 24 disturbing that the government is now trumpeting the awesome destructive power 25 of these materials, particularly when the government knows full well that these 26 collector's items were never intended for any harmful purpose. 27 . . . 28 6

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1 IV. 2 3 4 5

Alleged Obstruction of Justice (PSR ¶ 27).

A. Initial Contact With Mr. Segal Concerning Investigation of Possession of Parts Kit. The government makes another disingenuous that after arriving at Mr. Segal's house for the specific purpose of retreiving a parts kit, the ATF spontaneously

6 launched a new "investigation" into any and all possible firearms-related wrong7 doing by Mr. Segal. It supports this assertion by pointing to a generic, the standard 8 inquiry by ATF­ "Do you have any other weapons"? The government then claims 9 that because Mr. Segal did not admit alleged guilt concerning other items, that he 10 obstructed justice. This claim is problematic for several reasons. Assuming Mr. Segal did have other weapons in the home, he had no 11 12 obligation to tell the ATF about them. The government would have the obstruction 13 enhancement apply to every defendant who, after being asked any cursory and 14 potentially inculpatory question by law enforcement, did not there and then fall on his 15 knees, confess a crime, and have all of the evidence gift wrapped and hand delivered 16 to the agents. However, application note 1 to § 3C1.1 clearly states that "a 17 defendant's denial of guilt . . . is not a basis for application of this provision." By 18 saying there were no other guns in the home, the defendant was, in no uncertain 19 terms, denying his guilt. 20 Moreover, it cannot be fairly said that the ATF was interested in, let alone 21 22 23 24 25 26 27 28 involved in, conducting a new investigation into possession of other weapons at the time they asked the question about other guns. After Mr. Segal denied guilt by answering the question in the negative, the ATF did absolutely nothing to confirm or deny this statement. The ATF made no attempts for search warrants, conducted no surveillance, did not attempt to question Mr. Segal's family members, neighbors, or other associates, did not run any gun trace reports, did not examine the defendant's computer or financial records. Again, the government seems to be imagining 7

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1 circumstances that simply did not exist. Moreover, when Mr. Segal did tell the 2 agents about the storage locker in Arizona, the ATF had no trouble locating the 3 locker, accessing the items, and prosecuting the offense. There was no obstruction. 4 B. Alleged Obstruction Concerning Testimony of Miriam Ruth Segal. 5 The defense disputes the government's claim that the "primary issue" in the 6 case, and one which would have prevented conviction if "proven false", is the issue 7 of whether Mr. Segal possessed the collection in his home in Massachusetts before 8 9 10 11 12 13 14 15 16 17 18 the initial ATF contact and then shipped them to Arizona soon thereafter. The government's case of possession concerned the fact that the defendant possessed the items while they were Arizona. The issue of shipping was not central to the conviction. Indeed, the government would have most certainly charged Mr. Segal with the same crimes regardless of the shipping issue where the facts showed that Mr. Segal arranged for the storage locker, traveled to Arizona to secure the collection, put his own locks on the locker, and was the only one arguably having access to the collection. The jury could still have convicted, and very well might have in this case, even if they believed the items were in Arizona to begin with. The jury's verdict is not evidence of perjury. Nor, as previously stated, is

19 there any evidence that the defendant influenced his mother's testimony. See Exhibit 20 A, Affidavit from Miriam Ruth Segal at ¶ 7. 21 22 23 24 25 26 27 28 8 /s Douglas A. Passon DOUGLAS A. PASSON Asst. Federal Public Defender Respectfully submitted: August 12, 2005. JON M. SANDS Federal Public Defender

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1 Copy of the foregoing transmitted by CM/ECF for filing this 12th day 2 of August, 2005, to: 3 FRED BATTISTA Assistant U.S. Attorney 4 Two Renaissance Square 40 North Central Avenue, Suite 1200 5 Phoenix, Arizona 85004-4408 6 Copy of the foregoing mailed this 12th 7 day of August, 2005 to: 8 CRAIG HARAGA United States Probation 9 Sandra Day O'Connor Courthouse 401 W. Washington, Suite 160 10 Phoenix, Arizona 85003 11 SCOTT SEGAL Defendant 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 /s Douglas A. Passon

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