Free Response - District Court of Arizona - Arizona

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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
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DISTRICT OF ARIZONA
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United States of America, CR-04-378-PHX-SRB Plaintiff, v. Scott Segal, Defendant. RESPONSE TO DEFENDANT'S OBJECTIONS TO PRESENTENCE REPORT

The United States of America, by and through undersigned counsel, hereby responds to defendant's Objections to Presentence Report through the attached memorandum of points and authorities. Respectfully submitted this 10th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

FREDERICK A. BATTISTA Assistant U.S. Attorney

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MEMORANDUM The government's responses to the defendant's objections to the Presentence Investigation Report (PSR) will be presented in the order the objections were raised by the defendant. I. Offense Conduct ­ PSR ¶ 6, Conduct Relating to Machineguns in Massachusetts PSR ¶ 6 briefly and accurately summarizes the nature of the first contact between ATF and defendant in Massachusetts which ultimately resulted in the case in this district. Testimony regarding this contact, without mention of the machineguns, was presented at trial. This paragraph does not require amendment. II. Offense Conduct ­ PSR ¶¶ 10 & 11, Examination of NFA Weapons Defendant objects to the findings set forth in PSR ¶¶ 10 & 11 regarding the nature of weapons that were found in the subject storage facility and not charged, particularly firearms as defined in 26 U.S.C. § 5845(a), a definition section of the National Firearms Act (NFA). The government agrees that the subject firearms were visually examined and not test fired. However, the weapons, by their nature and configuration, clearly met individual definitions of NFA weapons and did not required further testimony. Additionally, for the reasons set forth with respect to PSR ¶¶ 23 and 24 below, except for a smooth bore pistol discussed with respect to PSR ¶ 21 below, the Court may defer an objection to this paragraph if it accepts the government's arguments set forth in PSR ¶¶ 23 and 24 below. III. Offense Conduct ­ PSR ¶ 15, Conversation Relating to the Placement of Mines Defendant objects to the PSR noting that he had previously told a friend, as a joke, that he might set up booby traps with mines on his front door in case the government came to get his guns. This information is relevant because the defendant possessed a significant amount of explosive materials that could be used to set up anti-personnel booby traps and defendant, to date, has demonstrated that he was willing to go to great lengths in order to

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continue to illegally possess his large collection of firearms, explosive materials and ammunition. Therefore, this paragraph does not require amendment. IV. Offense Level Computations ­ Standards of Proof Judicial fact finding is erroneous only when coupled with a mandatory guidelines system. United States v. Ameline, 409 F.3d 1073, 1081 (9th Cir. 2005). In Ameline, the Ninth Circuit directed district courts to apply the appropriate burdens of proof, consistent with United States v. Howard, 894 F.2d 1085 (9th Cir. 1990), to resolve factual sentencing disputes. Id. at 1086. Moreover, the Ninth Circuit has explicitly rejected a defense argument that the beyond-a-reasonable-doubt standard of proof set forth in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies in the advisory guidelines context. United States v. Dupas, ___ F.3d ___, ___ n.6 No. 04-50055 (9th Cir. Aug. 3, 2005). In Howard, the Ninth Circuit adopted "the rule that the government should bear the burden of proof when it seeks to raise the offense level and that the defendant should bear the burden of proof when the defendant seeks to lower the offense level." Howard, 894 F.2d at 1090. The court then explained that "the party bearing the burden of proof will be required to meet a `preponderance of the evidence' standard." Id. Thus, current case law does not support defendant's contention that the government must satisfy a beyond a reasonable doubt standard at sentencing. Due process is generally satisfied when a district court uses the preponderance of the evidence standard in making findings in sentencing proceedings. United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991). "The preponderance of the evidence standard is met by a showing that the relevant fact is more likely true than not." United States v. Collins, 109 F.3d 1413, 1420 (9th Cir. 1997). A district court is required to apply a clear convincing standard only where an enhancement has an extremely disproportionate effect on the length of the defendant's sentence. United States v. Valensia, 222 F.3d 1173 (9th Cir. 2000). The factors to be considered in determining whether an enhanced sentence has an extremely disproportionate effect on sentencing are: (1) whether the enhanced sentence falls
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within the maximum sentence for the crime alleged in the indictment; (2) whether the enhanced sentence negates the presumption of innocence or the prosecution's burden of proof for the crime alleged in the indictment; (3) whether the facts offered in support of the enhancement create new offenses requiring separate punishment; (4) whether the increase in sentence is based on the extent of a conspiracy; (5) whether the increase in the number of offense levels is less than or equal to four; and (6) whether the length of the enhanced sentence is more than double the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence. Id. at 1182. While there is no bright-line rule for the disproportionate impact test, courts should look to the totality of the circumstances without considering any one factor as dispositive. United States v. Jordan, 256 F.3d 922, 928 (9th Cir. 2001). Here, assuming a base offense level of 20 pursuant to PSR ¶ 21, increased by 8 offense levels pursuant to PSR ¶ 22 (number of guns) and 2 offense levels by PSR ¶ 27, the increase in the number of offense levels is 10. The length of the enhanced sentence may be approximately triple the length of the sentence authorized by the initial sentencing guideline range (33-41 months before enhancements, 97-121 months after enhancements). In this case, the significant 8 offense level enhancement based upon the number of guns has already been proven beyond a reasonable doubt. Further, the enhancement for obstruction of justice is only two offense levels, not disproportionate and provable by either standard since it primarily relates to materially false trial testimony of defendant's mother. V. Offense Level Computations ­ PSR ¶ 21, Base Offense Level Defendant objects to a base offense level of 20 set forth in PSR ¶ 21 pursuant to U.S.S.G. § 2K1.2(a)(4)(B). Defendant challenges the finding that the offense involved NFA firearms as defined in U.S.C. § 5845(a) such as machineguns, destructive devices or smooth bore pistols. Among the items shipped to Arizona and found in the subject storage locker was Trial Exhibit 108, a Butler Associates, .22 caliber single shot pistol with a smooth bore,
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bearing serial number B12144. This weapon meets the definition of an NFA weapon under Section 5845(a) and (e) and defendant was found by the jury to have knowingly possessed this weapon in violation of Section 922(g)(1). The only examination required to confirm the firearm meets the definition is a visual examination of the barrel to confirm that it has no rifling in the interior. If the court has any doubt that this particular pistol meets the NFA definition of a smooth bore pistol, the admitted exhibit can be produced at sentencing for further examination. There is, however, an alternative means of justifying a the same base offense level pursuant to 2K1.2(a)(4)(A) (commission of the instant offense with a prior conviction for a crime of violence). In this case, defendant has a prior conviction for Possession of an Unregistered Silencer Bearing No Serial Number. PSR ¶ 34. The possession of an unregistered NFA weapon such as an unregistered silencer has been found to be a crime of violence for purposes of the Sentencing Guidelines. See United States v. Huffhines, 967 F.3d 314 (9th Cir. 1992) (possession of an unregistered silencer is a crime of violence as defined in U.S.S.G. § 4B1.2). Therefore, defendant falls squarely within Section 2K1.2(a)(4) and the base offense level of 20. VI. Offense Level Computations ­ PSR ¶ 23, Enhancement for Possession of Destructive Devices Defendant objects to the two offense level enhancement under U.S.S.G. § 2K2.1(b)(3)

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in PSR ¶ 23 (possession of unregistered destructive devices). Assuming this Court applies
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a base offense level of 20 for the reasons detailed above, increased by 8 offense levels for the
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number of firearms as set forth in PSR ¶ 22, and 2 offense levels for obstruction of justice
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for the reasons set forth below and PSR ¶ 27, the government takes the position that the
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application of this Guideline, in the face an adjusted offense level of 30, overstates the nature
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of the conduct and should not be applied in this case. While there is not doubt that the
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defendant, an individual who takes great pride in his vast firearms knowledge, knowingly
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possessed the subject destructive devices that were readily restorable, an enhancement beyond an adjusted offense level of 30 for weapons which were not modern or fully functional is not appropriate in this case. VII. Offense Level Computations ­ PSR ¶ 24, Partially Obliterated Serial Number

Defendant objects to the two offense level enhancement under U.S.S.G. § 2K2.1(b)(4) in PSR ¶ 24 (possession of a single firearm with a partially obliterated serial number). Based upon the same assumptions, facts and arguments set forth with respect to PSR ¶ 23 immediately above, it is the position that this enhancement should also not apply in this case. VIII. Offense Level Computations ­ PSR ¶ 27, Obstruction of Justice Defendant contests the imposition of 2 offense levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The PSR applies the adjustment due to the defendant's shipment of firearms from his residence in Massachusetts to Arizona after the initial ATF contact in this case regarding a mail order machinegun kit. PSR ¶ 27. Pursuant to Application Note 4(g), obstruction of justice occurs when a defendant provides a materially false statement to law enforcement that significantly obstructs or impedes the official investigation or prosecution of the instant offense. Initially, ATF sought to contact the defendant, a known felon, regarding a mail order machinegun kit. However, without prompting, the defendant handed the agents a machinegun and told them that he had personally transported the firearm from Arizona to Massachusetts. Defendant was now under investigation for felon in possession of firearms due to this new information. In response to the production of the machinegun and the mail order machinegun kit, the agents then asked the defendant if he had any more firearms in the residence; defendant replied that he did not. As proven at trial, soon after this meeting defendant shipped the firearms, ammunition and explosives materials admitted into evidence at trial to Arizona from his residence in Massachusetts. Had defendant admitted that the items were in the residence and not
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clandestinely shipped the contraband to Arizona, the investigation and prosecution of this case would have been far easier and simpler. It was not until the agents searched defendant's residence several months later, and found numerous gun parts, that they realized the defendant was now storing guns at another location. The defendant's material false statement and subsequent conduct clearly impaired the government's investigation into a violation of 18 U.S.C. § 922(g)(1) for Felon in Possession of Firearms. With respect to the issue of perjury which was not addressed in the PSR, it is the position of the government that defendant suborned perjury, via his elderly mother, and that obstruction of justice occurred as set forth in Application Note 4(b). This is not a case where inaccurate testimony was the result of confusion, mistake or faulty memory. The defendant's mother's testimony was quite detailed and spanned many decades, historical events and personal events. The simple problem with her testimony is that it clearly related to the primary issue in the case and the defendant could not have been convicted if her testimony had been true. Obviously, the primary issue in the case was did the defendant possess the collection of firearms, ammunition and explosive materials in his home prior to the initial ATF contact and then ship them to Arizona soon thereafter. Based upon the sheer volume of the "collection" no one residing in the Segal residence would have been able to miss it. Contrary to the evidence proven at trial, defendant's mother, on his behalf and with the hope of an acquittal, testified as follows, (1) the "collection" was moved by Robert Power from the Segal residence in Arizona to the Power residence in Arizona after a confrontation between mother and son (Reporter's Transcript 4/22/05, pp. 29-31); (2) the subject crates were loaded with engine parts at the Segal residence in Massachusetts and she never saw any other crates shipped from the residence (Reporter's Transcript 4/22/05, pp. 38-41, 45, 47); (3) about two or three weeks prior to surgery on May 21, 2002 and the initial ATF contact which occurred shortly thereafter, defendant's mother took steps to have the "collection" moved from the
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Power residence in Arizona to the Power Mini-Storage facility in Arizona (Reporter's Transcript 4/22/05, pp.41-44); (4) defendant's mother responded "right" to the following question on cross-examination "Do you have any ­ it's basically your testimony that the guns ­ basically the entire collection was stored at the Power residence, is that correct?" (Reporter's Transcript 4/22/05, p. 57); and (5) on redirect (as clarification), defendant's mother testified that a single gun from the Arizona collection (apparently the registered machinegun) had, in fact, been transported to Massachusetts (Reporter's Transcript 4/22/05, p. 57). Based upon the totality of the circumstances of this case, it is the position of the government that defendant knowingly and intentionally suborned perjury by presenting the above-cited materially false testimony at trial. Defense counsel's argument that defendant's mother's testimony was developed and presented without any involvement by defendant is essentially incredible. Even a casual observer of this mother/son relationship can tell that it is longstanding, intimate and interdependent. The bottom line is simple, defendant needed to prove the "collection" never left Arizona and that he had no control over it in 2002. Defendant's mother's materially false testimony was defendant's best opportunity to present this defense.1 IX. Adult Convictions PSR ¶ 34, Allegation of Methamphetamine Trafficking Defendant objects to the notation in PSR ¶ 34 that prior to his conviction for Possession of an Unregistered Silencer Bearing No Serial Number, ATF received information that defendant was engaged in methamphetamine trafficking. It is the

government's understanding that this was an isolated allegation that was never substantiated.
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Defendant contends that the obstruction of justice enhancement should not apply by alleging that the government "intentionally" withheld evidence during trial. There is no evidence that the government "intentionally" withheld evidence during trial However, there was information that was inadvertently not disclosed, which came to government's attention during the course of the trial, and was disclosed in time for defendant to make complete and effective use of it. 8

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In light of this fact, the government has no objection to this allegation being deleted from the PSR. X. Other Criminal Conduct ­ PSR ¶ 36, Conduct Alleged During Civil Proceedings Relating to Harassment The defendant objects to the PSR noting that petitions were filed in the Superior Court

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of Arizona, Maricopa County, seeking injunctions as a result of alleged harassment and
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threatening phone calls. In light of the fact that the injunctions were upheld, the substance
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of paragraph does not require amendment. However, the government has no objection to the
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heading of this paragraph being amended to "Other Conduct."
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XI.
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Conclusion For the forgoing reasons, the PSR should be amended or not amended in accordance

with the responses set forth above.
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Respectfully submitted this 10th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

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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 [email protected] Craig W. Haraga U.S. Probation Officer 401 W. Washington, Suite 160 Phoenix, Arizona 85003-2119

S/ FREDERICK A. BATTISTA Assistant U.S. Attorney

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