Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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Tonya J. McMath 111 W Monroe Suite 1650 Phoenix, AZ 85003 (602) 254-5544 Attorney for Defendant UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Case 2:03-cr-01269-NVW Document 242 Filed 03/16/2006 Page 1 of 6
Page 6, ¶ 16 ) ) Plaintiff, ) ) vs. ) ) Paul K. Bryan, ) ) Defendant. ) __________________________________________) United States of America, No. CR 03-1269-002-PHX-NVW DEFENDANT'S OBJECTIONS TO DRAFT PRESENTENCE REPORT

Defendant, Paul K. Bryan, through undersigned counsel, respectfully submits the following objections to the draft presentence report ("PSR") in the above-captioned matter dated February 6, 2006. I. Facts Bryan believes that his Texas Driver's License expires on March 1, 2012, rather than March 1, 2006 "his/her" should read "his".

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Page 7, ¶¶ 23 & 25 Page 8, ¶ 27

Bryan denies that he actually controlled or had signatory authority over the TARECO, Inc. bank account in Dallas, Texas. Rather, Bryan asserts that the account was controlled by T.J. Miller who had sole signatory authority and conducted all transfers therefrom. While Bryan readily admits that he was the beneficial recipient of funds which passed through the TARECO, Inc. account into one or more accounts actually controlled by him, he asserts that the only transfer of funds from Stewart/PRC into a Bryan-controlled account is the subject of the transaction which forms the factual basis for the Plea Agreement in this case.

Page 8, ¶ 30

The fifth sentence should reflect that "Patel stated . . .", rather than "[t]he defendant stated . . ."

Page 15, ¶ 69 Page 16, ¶ 76

At the time of their marriage in 2002, Bryan's present wife was named Jill Thomas. She objects to the use of "Gardner", a misspelled variation of a former married name, "Gardiner", which she had not used in years. She presently goes by the name of Jill Bryan.

Page 15, ¶ 70

Jeffrey Goeringer was Bryan's full brother, rather than halfbrother. Bryan wishes to clarify that he was not intentionally seeking to conceal his deceased brother's existence during Bryan's presentence interview, but erroneously believed this information to be included in the PSR based on a "Statement of Personal History" contained in military records provided to the presentence writer at the time of the interview.

Page 16, ¶ 74

The final sentence should reflect that "The defendant lived in Springfield, Missouri from 2002 until he returned to Dallas" in October, 2005.

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Page 16, ¶ 76

The second sentence should be updated to reflect that "Jill Bryan is a legal secretary and is currently signed up with temporary agencies for employment in Miami, Florida, having accepted several assignments recently." The third sentence should reflect that "This marriage has produced Bryan's only biological child, 2-year-old Katherine Jean Ann Angelica, born in Springfield, Missouri." Bryan has two adult stepchildren born to his present wife, Jill Bryan.

Page 17, ¶ 79

The first sentence should reflect that "Bryan accidentally fell down a flight of stairs", rather than "from a set of stairs." The second sentence should reflect that "[t]he defendant underwent neurosurgery in August, 2004, wherein a C5, C6, and C7 diskectomy was performed and titanium plates were attached with screws to his spine (as reflected in medical records provided to the presentence writer)."

Page 17, ¶ 80

The final sentence should reflect that Bryan suffers from 100% hearing loss in his left ear and 60% hearing loss in his right ear without hearing devices.

Page 20, ¶ 94

The second and third sentences should include all of the military honors bestowed upon Bryan, as reflected in his updated Certificate of Release or Discharge from Active Duty Form DD 214, attached hereto as Exhibit "A", which was unavailable to Bryan and, therefore, to the presentence writer at the time the draft PSR was prepared.

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II.

Offense Level Computations: Adjustments for Role in the Offense The PSR accords Bryan a two-level "Role in the Offense" adjustment for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. This enhancement contravenes paragraph 2(a)(4) of the Plea Agreement which provides, in pertinent part, "that defendant does not qualify for an upward guideline adjustment based upon his role in the offense." Bryan asks that his guideline offense level computation give effect to this stipulated provision of the plea agreement which comprises a carefully negotiated, balanced compromise between the parties and reflects the judgment of counsel for both parties that any role-inthe-offense upward adjustment is inapplicable to the facts of this case.

Page 11, ¶¶ 50, 52 & 54 Page 22, ¶ 99

III.

Criminal History Bryan admits the accuracy of the dispositions of the identified law enforcement contacts and that the accusations lodged against him were as stated therein, but denies the truth of many of these accusations.

Pages 13-14, ¶¶ 59-63

Page 14, ¶ 65

Bryan notes that the referenced protective order was a temporary protective order only, which subsequently was dismissed. Bryan

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further would request that the Court be informed that he obtained a

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reciprocal permanent restraining order against Maestro out of

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Texas.

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Case 2:03-cr-01269-NVW

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Document 242 Filed 03/16/2006 Page 4 of 6

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Page 15, ¶ 68

Bryan would like to clarify that the referenced civil court hearing constituted a judgment/creditor examination subject to a courtordered stay based on a pending bankruptcy proceeding. The hearing was scheduled and the civil arrest warrant was issued in contravention of that stay.

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Financial Condition: Ability to Pay The amounts of the respective vehicle loans are transposed. That is, the 2002 Ford Taurus should reflect a loan amount of $4,000.00 and the 2001 Dodge Durango a loan amount of $9,000.00.

Page 21, ¶ 95 ­ Liabilities

Pages 21-22, ¶¶ 95 & 96 Net Worth/Net Monthly Cash Flow

While it is true that the Bryans were "one month delinquent with their rent and two months overdue in their vehicle payments" at the time the draft PSR was prepared, both rent

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and payments on the vehicle loans since have been brought

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current.

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Page 21, ¶ 95 ­ Net Worth

All references to Jill Bryan as "Lyytinen's sister" should be changed to reflect "Lyytinen's former sister-in-law." The fourth sentence should reflect that "Bryan's wife stated the incident represented a financial hardship for her and Bryan as her former brother-in-law stole all their personal property which had been in a storage facility." The final sentence should reflect that "the parties mutually dismissed their pending petitions in light of the ruling of the court finding in favor of each party and ordering each to pay its own costs."

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Page 22, ¶ 96 ­ Monthly Living Expenses

The following additional monthly living expenses should be included: Gas in the amount of $400.00 and Health Insurance/Medication for Katherine in the amount of $100.00.

Page 22, ¶ 96 ­ Net Monthly Cash Flow

The second sentence should be updated to reflect that "[t]he defendant's wife resides and works in Miami, Florida, and is gainfully employed." The fourth sentence should reflect that Mrs. Bryan now owes $800 toward a personal loan.

Respectfully submitted this 16th day of March, 2006.

By _/s/ Tonya J. McMath Tonya J. McMath Attorney for Defendant Copy of the foregoing filed/delivered via the CM/ECF system this 16th day of January, 2006 and delivered to the following ECF registered recipients: Michelle R. Hamilton 40 North Central, Ste. 1200 Phoenix, AZ 85004 Paul V. Rood 40 North Central, Ste. 1200 Phoenix, AZ 85004 By /s/ T. McMath

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