Free Response - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
9

DISTRICT OF ARIZONA
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

United States of America, CR-04-378-PHX-SRB Plaintiff, v. Scott Segal, Defendant. RESPONSE TO DEFENDANT'S SENTENCING MEMORANDUM/REQUEST FOR DOWNWARD DEPARTURE AND/OR NON-GUIDELINE SENTENCE

The United States of America, by and through undersigned counsel, hereby responds to defendant's Memorandum/Request for Downward Departure and/or Non-Guideline Sentence through the attached memorandum. Respectfully submitted this 10th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 1 of 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 26

MEMORANDUM The government's responses to the defendant's Memorandum/Request for Downward Departure and/or Non-Guideline Sentence will be presented in the order the issues were raised by defendant. I. Use of Collection for Lawful Sporting Purposes The government's response to defendant's objection to a base offense level of 20 under U.S.S.G. § 2K2.1(b)(4) (Presentence Investigation Report (PSR) ¶ 21) clearly sets forth multiple bases for the application of this particular Guideline. See United States v. Huffhines, 967 F.3d 314 (9th Cir. 1992) (a conviction for possession of an unregistered silencer is a conviction for a crime of violence as defined in U.S.S.G. § 4B1.2). In fact, if the Court were to consider both the fact that the defendant has a prior conviction for a crime of violence and the offense involved a weapon as defined in 26 U.S.C. § 5845(a), e.g., Trial Exhibit 108, a Butler Associates, .22 caliber single shot pistol with a smooth bore, defendant's base offense level could be 22 under U.S.S.G. § 2K2.1(b)(3). Assuming a base offense level of at least 20 under Section 2K2.1(b)(4), defendant's prior conviction for a crime of violence, and his conduct regarding his possession, transportation and storage of the subject weapons, including over 34,000 rounds of ammunition and explosive materials, demonstrates that he does not merit a downward departure for possession of the items solely for lawful sporting purposes. In this case, defendant was a convicted felon who was clearly on notice that he could not lawfully possess the subject weapons. However as he learned that he could not get his firearms rights restored, defendant intentionally chose to break numerous laws in order to continue to possess the weaponry and evade prosecution. These offenses include, but are not limited to, receipt of new firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1); illegal interstate shipment of firearms, ammunition and explosive materials by a convicted felon from Arizona to Massachusetts in violation of 18 U.S.C. §§ 842(i) and 922(g)(1); the making
2

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 2 of 6

1 2 3 4 5 6 7 8 9 10

of a materially false statement to ATF agents in response to the question as to whether he possessed any additional firearms in his Massachusetts residence in violation of 18 U.S.C. § 1001; the shipment of over 100 firearms and 34,000 rounds of ammunition without giving notice to a common carrier in violation of 18 U.S.C. § 922(e); the improper storage of explosive materials in a self storage facility violation of 18 U.S.C. § 842(j); and the suborning of perjury by defendant's mother at trial in violation of 18 U.S.C. § 1622. Under these circumstances, defendant does not merit a downward departure for possession of the weaponry solely for lawful sporting purposes. II. Extraordinary Family Responsibilities/Extraordinary Effect on Innocent Family Members Once again defendant is seeking to use his elderly mother as a shield from federal

11

prosecution after committing the long list of federal crimes listed above. The conduct most
12

troubling to the government is defendant's willingness to have his elderly mother travel to
13

Arizona and commit perjury on his behalf in federal court, as detailed in the government's
14

response to defendant's objection to a 2 offense level enhancement for obstruction of justice,
15

even though he evidently had detailed concerns about her health and well being. It is the
16

government's position that a son who truly cares about the health and well being of his
17

elderly mother would seek to resolve his pending criminal charges without drawing her so
18

deeply into his ongoing scheme to evade prosecution and the forfeiture of the firearms.
19

With respect to the factor set forth in U.S.S.G. § 5H1.6 and Application Note 1(a), the
20

government views the facts of this case differently than defendant.
21

A.
22 23

Seriousness of Offense, Etc.

With respect to the seriousness of the offense, according to the government's calculations defendant is currently facing an adjusted offense level of 30 and a sentencing
24

range of 97 to 121 months in prison for two felonies involving the illegal possession of over
25

100 firearms (including many modern semi-automatic assault weapons), over 34,000 rounds
26 3

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 3 of 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 26

of ammunition (including hundreds of rounds of .50 caliber ammunition) and numerous explosive materials that could be used in the construction of all manner of booby traps. Accordingly, in the grand scheme of federal felonies, these are not relatively minor. With respect to family involvement in the offense, it is clear that defendant's mother has turned a blind eye to her son's ongoing violations of the federal firearms and explosives laws and attempted to come to his aid by committing perjury on his behalf. Accordingly Under these circumstances, defendant does not merit a downward departure due to his mother's involvement in the subject offenses. With respect to danger to family members as a result of the offense, it appears that the greatest danger was to defendant's mother via the stress of being asked to present materially false testimony under oath in another state and thereby risk committing the federal offense of perjury. In light of her health, this clearly had to be a dangerously stressful situation for defendant's mother. The defendant's role in these events does not merit a downward departure. B. Loss of Caretaking, Etc.

There is no doubt that defendant's mother is dependant on her son in numerous ways. However, many individuals who commit crimes and face incarceration are in similar circumstances with respect to an elderly parent. Again, it is the position of the government that the defendant could have exhibited greater concern for his mother by not drawing her so deeply into his scheme to evade prosecution and then later raise great concern for her well being only after his conviction. It was also the government's understanding that defendant's two story house in Massachusetts was for sale at the time of trial and defendant was seeking to move and return his mother to Arizona. While the quality of defendant's mother's life may be impacted by her son's incarceration, there is no evidence that his incarceration will "most likely hasten her death."

4

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 4 of 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 26

III.

Forfeiture of Firearms The defendant's federal conviction occurred on July 12, 1993. Since that date,

defendant sought to have his rights restored and was advised that there was no mechanism for such restoration on multiple occasions. As shown at trial, the government had no knowledge of his ongoing possession of the weaponry from 1993 until 2002. The defendant had approximately nine years to sell or properly dispose of the collection. However, he chose to personally possess the collection, including a machinegun, in knowing violation of federal law. In light of these facts, the forfeiture of the firearms at this late date should not give rise as a basis for a downward departure. IV. Extraordinary Physical Impairment It is the position of the government that defendant's medical condition is not so extraordinary as to merit a downward departure. There are many inmates currently in federal custody suffering from ailments far more serious than defendant's who are receiving appropriate health care. V. Vulnerability to Victimization or Abuse in Prison Defendant is a middle-aged white male who worked in the computer industry, possessed numerous weapons and is a felon. There is nothing in his background that would make him more vulnerable while in incarceration than thousands of current federal inmates. VI. Combination of Factors The above-noted factors, either individually or combined, do not merit a significant downward departure in this case. As stated in the government's response to defendant's objections to the PSR, the government agrees that 2 offense level enhancements each for possession of destructive devices as well as possession of a weapon with a partially obliterated serial number potentially overstate the nature of the subject offenses; this may also be the case for a base offense level of 22 pursuant to Section 2K2.1(a)(3) as discussed above. However, a reduction below the range of an adjusted offense level of 30 would not
5

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 5 of 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 26

fully take into account the nature of defendant's criminal conduct in this case. For example, the Sentencing Guidelines do not address the over 34,000 rounds of ammunition defendant illegally possessed or the numerous explosive materials that could be used as the key element to numerous booby trap bombs. VII. Ultimate Sentence For the forgoing reasons, it is the position of the government that defendant should be sentenced within the applicable range of adjusted offense level 30 and Criminal History Category I. Respectfully submitted this 10th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney I hereby certify that on August 10, 2005, I caused the attached document to be electronically transmitted 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: Douglas A. Passon Assistant Federal Public Defender Craig W. Haraga U.S. Probation Officer
S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

6

Case 2:04-cr-00378-SRB

Document 117

Filed 08/10/2005

Page 6 of 6