Free Memorandum - District Court of Arizona - Arizona

OSBORN MALEDON
A PR O FESSI O NA L A SSO CIA TI O N A T T O R N E Y S A T LA W

1 2
______________________

3
The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2793 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050

4 5 6 7 8

Larry A. Hammond (004049) OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2794 (602) 640-9000 [email protected] Attorneys for Defendant Glen Beck

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

9 10 11 12 13 GLEN BECK, 14 15 16 17 18 "Memorandum" and the "Sentencing Recommendation" dated December 17, 2007. 19 20 21 22 23 24 25 26 27 28
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 1 of 13

UNITED STATES OF AMERICA, Plaintiff, vs.

Defendant.

) ) ) ) ) ) ) ) ) )

No. CR 03-00890-PHX-JAT

PROBATIONER'S OBJECTION TO PROBATION OFFICE MEMORANDUM AND SENTENCING RECOMMENDATION

Probationer, Glen A. Beck, responds through counsel to the Probation Office's

For the reasons that follow, we urge the Court to reject in its entirety the conclusions and recommendations of the Probation Officer. We have also reviewed the Objection to the Probation Office Report filed by the Office of the United States Attorney. (Dkt. 62) We join in that Office's objections and will not repeat them here. The Probation Office recommendations (1) are inconsistent with factual representations made by the United States in connection with the dismissal of the other Allegations, (2) are based on assertions that are unrelated to the single Allegation at issue, and (3) are based

1 2 3 4 5

upon information never provided to the Probationer at any point in this proceeding (as more fully described below).

I.

INTRODUCTION This matter came before the Court on December 10, 2007, for what parties

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 will then address the Probation Office's sentencing recommendation (Section III). Finally, we will respond to a number of the most significant misleading and 2
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 2 of 13

advised the Court was an agreed upon disposition of the pending probation proceedings. As the Government and counsel for Mr. Beck advised the Court, the parties had agreed to the dismissal of four of the five "Allegations" contained in the Petition for Violation of Probation. The parties further agreed that Mr. Beck would admit to a violation of Allegation E and, importantly, the parties agreed that the Government would make no recommendation as to the proper disposition with respect to this single allegation. While the Office of the United States Attorney has acted consistently with that agreement, the Probation Office has not. The Probation Office, instead, has recommended that the Court incarcerate Mr. Beck for three months and that it increase his monthly restitution payment to $500.00. There has been no record established that would support either of these recommendations. The Probation Office's recommendations are based upon considerations other than those relevant to Allegation E ­ and, as more fully developed below, are founded upon inaccurate and misleading statements and information never heretofore provided to the Probationer in any form. We will first respond to the issue with respect to Allegation E (Section II). We

1 2 3 4 5

inaccurate statements in the Probation Office's Memorandum and Sentencing Recommendation (Section IV).

II.

ALLEGATION E Probationer, Glen Beck, was prepared to admit facts with respect to Allegation

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 3 of 13

E as part of the overall resolution of this matter. Specifically, he was and is prepared to admit that he entered into a lease of an apartment without obtaining the prior approval of the Probation Officer, arguably a violation of special condition number 3. When Mr. Beck first met with the Probation Office more than two years ago, he was residing in a studio apartment. He has an adolescent son who is a severe diabetic and he felt then, and feels now, that it was important for him to continue to reside in an area near his son's home and school. The rent for that apartment was $929. In early 2006, Mr. Beck's college-age daughter offered to move in with him if he were to rent a two-bedroom apartment in the same gated complex. She agreed to pay $500 per month. She is a member of the United States National Guard and has a guaranteed source of income. Mr. Beck conferred with the managers of the apartment complex and found that a two-bedroom unit in that complex could be rented for $1260 per month. Given the $500 contributed each month by his daughter, the total net rental cost would be $760 ­ a reduction of approximately $169 per month from what he was already paying. He had looked at other apartments as recommend by his probation officer and found no reasonably available place where he could live for less

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 27 28

than $760 per month. He also recognized that by staying in the same complex he would avoid the costs of moving that would otherwise be necessary. He informed his Probation Officer of this decision. Mr. Beck and the Probation Officer had a number of conversations about this topic, but he is prepared to admit that he did not obtain her formal approval. Mr. Beck did, however, comply with the condition of probation that seems most relevant. Condition number 7 requires probationers to advise the Probation Office within ten days of any change of residence. Mr. Beck did so. In fact, his monthly report for the month in which he entered into the lease (March 2006) and for every month thereafter correctly identified his new address and the gross and net rental amount. His daughter has resided with him in this apartment now for approximately 22 months and has paid over $4000 toward the rental expenses. The total amount paid for rent is less than it would have been had Mr. Beck moved out of the complex. It is probably for this reason that the Probation Office has recently approved Mr. Beck's request to renew the lease and now, with the Probation Office's approval, he has entered into an extension of that lease. The Probation Office does not state in its Memorandum that, with the concurrence of the Office of the United States Attorney, the lease renewal has been approved. Neither does the Probation Office acknowledge in its Memorandum the $500 per month contribution by Mr. Beck's daughter. While these facts may constitute a violation of condition number 3, we would respectfully suggest that the relevant facts confirm that it is not a violation that would 4
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 4 of 13

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 27 28

in any way justify revocation of probation. The "financial contract" was one that resulted in a lower rather than higher expenditure. The probation officer's stated goal was to assist Mr. Beck in saving money. He did save money. He saved more than the probation officer's proposal would have yielded. Moreover, he notified the Probation Office and at no time was there any doubt about where or with whom he resided.

III.

PROBATION OFFICE'S SENTENCING RECOMMENDATION The Probation Office's "Sentencing Recommendation" ­ that Mr. Beck be

incarcerated for three months and that his monthly restitution be increased from $100 to $500 ­ is based upon at least three fundamental errors. Respectfully, we ask that it be disregarded. As the Probation Office's "justification" reveals, it is totally inconsistent with the parties' anticipated disposition. It is based upon considerations that not only have nothing to do with Allegation E but, to the contrary, are based on the Probation Officer's personal views that are inconsistent with the Government's representations made to the Court on December 10 ­ representations that formed the basis of the dismissal of the first four allegations. Most disturbingly from the probationer's standpoint, the Sentencing Recommendation, in significant part, is based on arguments and information never heretofore raised or disclosed to Mr. Beck. A. THE AGREED UPON PROPOSED DISPOSITION As noted above and as explained in open court on December 10, Mr. Beck and the Government, we believed, had entered into an agreement with respect to the five Allegations in the Petition to Revoke. Four of the five were to be dismissed. Allegation E was to be admitted. There was to be no recommendation from the 5
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 5 of 13

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 27 28

Government as to Allegation E. As the December 10 makes clear, the only area of uncertainty between the parties had to do with the future conditions of supervised release as they related specifically to the questions of travel and document production. Prior to the receipt of the Memorandum and Sentencing Recommendation from the Probation Office, we had no indication that the Probation Officer objected to, or disagreed with, the resolution agreed to and presented to the Court. We believe it appropriate to advise the Court that the Probation Officer had been consulted in detail on every step that led to the proposed resolution. Undersigned counsel and Ms. Cerow had a large number of telephone conversations and meetings. The Probation Officer was in attendance at one of those meetings, and also conferred with both counsel on December 10 prior to the hearing. At every stage, Ms. Cerow was careful to say that before she could enter into an agreement she needed to consult with the Probation Officer. We have no doubt that in fact she was consulted with respect to every element. Probationer and his counsel appreciate that the United States Probation Office is an arm of the Federal Judiciary and performs a function distinct from the functions performed by the Department of Justice. Throughout these proceedings, however, it has been evident that the Office of the United States Attorney and the Probation Officer were working in cooperation with each other. We had no reason to think that the disposition acceptable to the Office of the United States Attorney would be different from the recommendation of the Probation Officer.

6
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 6 of 13

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 27 28

B.

THE BASIS FOR THE JUSTIFICATION The Probation Officer continues to argue that "the defendant has not supplied

requested financial documents as directed," in spite of the fact that the U.S. Attorney advised the Court that the only occasion upon which documents were requested that have been in dispute involved a package of credit card receipts that were delivered to the Probation Office and were lost by that Office. (Tr. of 12/10/07, at 25.) Mr. Beck has continued to provide his monthly reports complete and on time without exception for now more than two and one-half years. The Probation Officer also continues to be of the view, apparently, that Mr. Beck deliberately failed to disclose that he had an apartment in California. That allegation, likewise, has been dismissed. The Assistant United States Attorney has explained in open court on December 10 that there had been "confusion" or a misunderstanding with respect to the nature of the request for information about Mr. Beck's office locations in San Francisco. (Tr. 12/10/07, at 24) We respectfully suggest that it would be wholly inappropriate for the Court now to rely on the Probation Officer's version of events unrelated to Allegation E and inconsistent with the dismissal of the remaining allegations and inconsistent with representations made by the Office of the United States Attorney. C. THE FINANCIAL LITIGATION UNIT To Mr. Beck and undersigned counsel, the most startling aspect of the Probation Office's Sentencing Recommendation is the inclusion of information alleged to have been received from the United States Attorney's Office Financial 7
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 7 of 13

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 27 28

Litigation Unit (FLU). The FLU is located at the U.S. Attorney's Office in Tucson. Approximately a year ago, Mr. Beck was asked to provide a wealth of financial information to that Unit. He was also deposed. The deposition and the document production occurred in February, 2007. Mr. Beck cooperated fully with that Unit's inquiry. Since that date, neither Mr. Beck nor undersigned counsel have received any further communication whatsoever from that Unit. We had hoped to receive further communications from that Unit in order to begin the process of addressing the outstanding restitution order. The restitution amount (approximately $1.8 million) reflects neither gain received by Mr. Beck nor loss sustained by the pharmaceutical company involved in the underlying case. The issues with respect to the amount of outstanding restitution do need to be addressed at some point and while we have continued to look forward to that opportunity, we have heard nothing. The Probation Officer's reference to information received from the FLU is doubly surprising because both Ms. Cerow and Ms. Spencer have repeatedly and most emphatically explained to Mr. Beck and to undersigned counsel that the activities of the Financial Litigation Unit are entirely independent of this probation revocation proceeding. Repeatedly, we have been told that the two organizations do not collaborate and do not cooperate with each other. We have never been asked by Ms. Spencer or the Office of the United States Attorney's Office to address or elaborate on any of the financial information provided to the FLU. It bears repeating that whatever information the Probation Officer has received it is information that has not been shared with Mr. Beck or undersigned counsel. We 8
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 8 of 13

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 27 28

submit that the inferences drawn are hopelessly inaccurate and reflect a failure to read with care or to understand the financial data provided to the FLU. In any event, the question of adjusting the outstanding restitution amount is not today ­ nor has it ever been ­ a part of this proceeding. For all of these reasons we ask that the sentencing recommendation be rejected. If it is to be considered in any respect, we respectfully request the opportunity for a full evidentiary hearing on all of the issues that now form the basis for the Probation Office's recommendation. Any fair reading of the financial records of Mr. Beck's business would not support the conclusions stated by the Probation Office.

IV.

MISCELLANOUS ERRONEOUS STATEMENTS The Memorandum and attached Sentencing Recommendation contain a large

number of erroneous and misleading statements. Each of them should be irrelevant to the proceeding before the Court, but since these documents have now been placed in the record we believe it important to respond. (A) On page 1 of the Probation Office Memorandum, there is a statement

indicating that Mr. Beck was "released with conditions" when he appeared on May 17, 2007. Mr. Beck was released on precisely the same conditions that had been in place since the commencement of his probation more than two years ago. There were no new conditions and, we think importantly, no new conditions were requested at that time either by the Office of the United States Attorney or by the Probation Office.

9
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 9 of 13

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 27 28

(B)

In both the Memorandum and Sentencing Recommendation the Probation

Office states erroneously that the "original Sentencing Guideline range" in Mr. Beck's case was 30 to 37 months and that he was given a sentence of probation solely because of a downward departure agreed to by Judge Strand. The statement is misleading and significantly in error. Mr. Beck had not thought it relevant to address this issue but in light of the Sentencing Recommendation it may become necessary to do so. The sentencing transcript in Mr. Beck's case, as well as the presentence report make clear that at the time of Mr. Beck's change of plea and at his sentencing, the Court had yet to resolve the question whether any enhancement of Mr. Beck's sentencing range could be undertaken. Blakely had been decided, and the question remained open at the time whether the "loss" could be calculated by the Court without a jury determination. With that uncertainty in mind, the Probation Office drafted two alternative sentencing calculations. One of them contemplated the upward adjustment based upon loss with a concomitant downward departure under 5K1. The other computation, referred to as the "Blakely" computation, came to a sentencing range of 0 to 6 months. Judge Strand found it unnecessary to decide which calculation was the appropriate one and further found it unnecessary to address the details with respect to the "loss" calculation because in either event his sentencing determination would be the same, i.e., probation and a range of 0 to 6 months. At no point did the parties or the Court contemplate that this case might fall into "Zone D" that would make Mr. Beck not probation eligible. Obviously, this is a relatively complicated set of facts and if relevant in any way ­ which we believe it not to be ­ we would ask for the 10
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 10 of 13

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 27 28

opportunity to completely brief this topic and to provide to the Court all of the relevant underlying documents from the change of plea, the presentence report and the sentencing itself. (C) In its "Justification," the Probation Officer makes the statement that

"throughout supervision the Defendant has been uncooperative with Probation and has chosen to continually involve his attorney in very routine matters. This constant involvement has been troublesome ..." This statement is both erroneous and misleading. As the United States Attorney's Office indicated on December 10, there had been several isolated disagreements between the Probationer and the Probation Office. Those are being addressed by clarifying the terms of Mr. Beck's supervised release in ways that we believed were acceptable to both parties. It is unfair and inaccurate ­ especially in the absence of any evidentiary hearing ­ for the Probation Officer to claim now that Mr. Beck has been "uncooperative" "throughout supervision." In addition, it is certainly inaccurate to suggest that undersigned counsel has been "continually involve[d] ... in very routine matters." Undersigned counsel's first involvement in this matter occurred when Ms. Spencer presented to Mr. Beck a document containing supplemental terms. That communication occurred in February of 2007. It was that communication which led to this proceeding. Prior to that time, or for the first 20 months of probation, the undersigned counsel had absolutely no communication with Ms. Spencer or with the Probation Office with respect to Mr. Beck's terms of probation. To whatever extent this statement is deemed relevant to 11
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 11 of 13

1 2 3 4 5

this proceeding, we respectfully request the opportunity for an evidentiary hearing to develop on the record the facts with respect to the extent to which Mr. Beck either did or did not act "uncooperatively" by "involving" counsel.

V. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION We suggest that the appropriate disposition with respect to Allegation E is to

require that Mr. Beck continue ­ as he has done with respect to the most recent lease renewal ­ to communicate and to seek approval in advance of any lease or other home arrangements. He has done so with respect to the most current lease renewal and that renewal has been approved by the Probation Office. Other than clarifying the extent of this obligation, we submit that no further disposition is warranted. Mr. Beck has attempted in the utmost of good faith to comply with the requirements of his probation. He has filed every monthly report. He has made every monthly payment. He has violated no terms that could in any way be regarded as deliberately disregarding his obligations as a Probationer. RESPECTFULLY SUBMITTED this 4th day of January, 2008. OSBORN MALEDON, P.A.

By

s/Larry A. Hammond Larry A. Hammond 2929 North Central Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Glen Beck

12
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 12 of 13

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 27 28 13
Case 2:03-cr-00890-JAT Document 63 Filed 01/04/2008 Page 13 of 13

CERTIFICATE OF SERVICE I hereby certify that on the 4th day of January, 2008, 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 registrant: Darcy A. Cerow - [email protected] Additionally, a copy has been emailed to Rhonda Spencer at: [email protected] s/Donna Toland
1871349