Free Motion for Departure - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD I. MESH Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 002716 Telephone (602) 514-7500 [email protected]

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 27 28 The United States of America, through its undersigned attorneys, hereby filed this Supplement to the Government's Motion for Downward Departure previously filed on November 7, 2005. This supplement is for the purpose of modifying the governments original recommendation of a two level downward departure to reflect a new government recommendation for a four level downward departure for sentencing purposes. recommendation is based upon the following reasons. A. The Arrest of Coconspirator Azizi McNeill. On Thursday, November 10, 2005, co-defendant Azizi McNeill was transported by the United States Marshal from the place of her arrest in Indianapolis, Indiana to Phoenix, Arizona for the purpose of her arraignment on the charges pending against her in the indictment herein. Ms. McNeill is the last of the eight co-defendants to be apprehended in this case. She was the most active participant in the conspiracy as to opening the greatest number of fraudulent bank 1 This United States of America, CR - 04­373-04-PHX-JAT Plaintiff, v. Yaughn Marcellus Robinson, Defendant. Supplement to Government's Motion for Downward Departure

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accounts and individually caused the highest amount of loss to the victim merchants. Pretrial Services reports that she has two prior felony convictions which will have a substantial impact on her sentencing range in the event she is found guilty of any the 12 felony counts pending against her. The government does not anticipate offering her a cooperation plea agreement since all of her co-defendants have already pled guilty. The crimes listed in the indictment were committed in excess of five years ago. Although the government has evidence that there were other unidentified coconspirators involved in the conspiracy, the statute of limitations will preclude their indictment even if Ms. McNeill was to offer her testimonial assistance to the government. This factual predicate requires the government to ready itself for a trial in Ms. McNeill's case. The defendant Yaughn Robinson has entered into a cooperation plea agreement to testify truthfully against his coconspirators. On information and belief derived from his debriefings and corroboration obtained from independent witnesses, defendant Robinson's testimony will be of great value in the government's case in chief against Ms. McNeill. In cases similar to defendant Robinson's, upon the completion of the cooperation agreement, the government has recommended pursuant to United States Sentencing Guidelines, (USSG) Section 5K1.1, a four level downward departure for other cooperating defendants. These recommendations represent a two level downward departure for entering into a cooperation agreement, which itself may be sufficient in some cases to induce other defendants to plead guilty, stemming from their awareness of the magnitude of the evidence against them. When a cooperating defendant does testify in a trial, an additional two level downward departure is recommended in recognition of an even greater degree of assistance to the government. In the ususal case, the government awaits the completion of a defendant's cooperation before making a 5K1.1 downward departure recommendation. However, this case has turned out to be unusual in several respects. First, the timing of Ms. NcNeill's arrival in Arizona, one business day prior to defendant Robinson's sentencing, precluded the timely filing of a motion to continue the hearing. 2

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Secondly, defendant Robinson has traveled at his own personal expense for sentencing to Phoenix, Arizona from his present residence in Meridian, Mississippi, where he attempting to recover from the devastating effects on his life from Hurricane Katrina. Thirdly, defendant Robinson has to date fully abided by his cooperation plea agreement with the government and there is every reason to believe that he will continue to do so, irrespective as to the actual date of imposition of sentence. The government asserts that it is not necessary to hold sentencing over defendant Robinson's head in order to obtain compliance with the terms of the plea agreement. Finally, Ms. McNeill's trial, if it occurs, is not likely to take place before six to nine months from now. It is in the interest of justice and also to bring a sense of finality for the defendant that sentencing proceed at this time. B. Government's Reassessment of Defendant Robinson's Role in the Offense. Incident to the preparation of this pleading, the government was urged by the defense to reexamine the presentence report (PSR) conclusion that defendant Robinson's sentencing level should be enhanced by two additional levels based upon his purported supervision role in the offense. (See PSR, paragraph 36.) That conclusion arose from the fact that defendant Robinson physically provided the money to co-defendant Desiree Smith for deposit into her account in order to further the scam to be perpetrated against the merchants. Robinson also accompanied Smith through her one weekend, $10,000.00 fraudulent buying spree on behalf of the conspiracy. The government has no independent evidence that Robinson was in a supervisory role for the conspiracy. All of the above information was obtained initially from the cooperation of co-defendant Desiree Smith. It was thereafter substantially corroborated by defendant Robinson as part of his cooperation debriefing. Examination of their statements also revealed that at the time of Smith's involvement in the conspiracy, November 2000, she had been in a romantic relationship with Robinson since June 2000. Neither Smith nor Robinson reported viewing their criminal activity as anything other than mutual participation, arising from their boyfriend-girlfriend relationship. 3

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In fact, Smith acknowledged that she approached co-defendant Noel Begley, a.k.a. Capone, for the opportunity to obtain money by participating in the conspiracy. According to Smith, she traveled to Tucson, Arizona with Begley for the sole purpose of opening her fraudulent bank account. Begley provided her with the false social security number to be used for obtaining a checking account, a false address in Tucson to be listed on the account, and the initial $100.00 deposit. The government has not detected any instances of deception from either Smith or Robinson, and therefore places a high degree of credibility on their statements. Under these circumstances, it is entirely possible that Robinson was a mere conduit for Belgey's $1,920.00 which was given to Smith for deposit in her bank account just before the shopping spree. It would similarly appear possible that Robinson was again the conduit for the fraudulently acquired property, purchased by Smith that weekend, which he gave to Begley. Some of that property was seized while it was being refunded by co-defendants Azizi McNeill and Arburary Fuller, a.k.a. C-Rock. In short, in the male dominated environment of this conspiracy, Robinson may have been the defacto supervisor of Smith on her one weekend criminal outing. Clearly, Robinson was the more experienced criminal operator between the two and undoubtedly, his criminal activities spanned a greater time period. On the other hand, it is equally clear that each did work for Begley, who in turn was the right-hand man for Kenneth Foster, a.k.a. Monster. Upon reexamination, the issue of Robinson's role in the offense is in the judgment of the government too close to call. There does not appear to be a preponderance of the evidence in favor of the enhancement. C. Conclusion. Based upon all the foregoing, it is respectfully recommended that the court adopt the presentence report as its sentencing findings as modified by this pleading and award the defendant Robinson a four level downward departure from the total offense level.

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Respectfully submitted this _________day of November, 2005.

PAUL K. CHARLTON Unite States Attorney, S/Richard I. Mesh RICHARD I. MESH Assistant Unite States Attorney,
CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of November, 2005, 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: Jane L. McClellan Federal Public Defender's Office 850 W . Adams St., Ste. 201 Phoenix, AZ 85007 Attorney for Defendant Robinson S/Richard I. Mesh

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S/Richard I. Mesh Judge James A. Teilborg United States District Judge 401 W . W ashington St., Phoenix, AZ 85003 Guillermo A. Pena Senior U.S. Probation Officer 401 W . W ashington St., Ste. 160 Phoenix, AZ 85003 I hereby certify that on the 12 th day of November, 2005, I served the attached document by fax on the following, who are not registered participants of the CM/ECF system:

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