Opinion
CRIMINAL NO. 6:06-00196.
August 12, 2008
MEMORANDUM OPINION AND ORDER
At a hearing held on August 11, 2008, the defendant appeared in person and by counsel, George J. Cosenza, and the United States appeared by R. Booth Goodwin II, Assistant United States Attorney, for the purpose of considering the pretrial diversion agreement reached by the parties.
Under the parties' agreement, defendant will be under the supervision of a federal probation officer for a period of twelve (12) months, during which time she must comply with the conditions set by the probation officer and set forth in the agreement. If defendant violates the conditions of her supervision, the United States may modify any of the conditions or void the agreement and resume prosecution of the defendant. Upon successful completion of the period of supervision, the defendant will not be prosecuted in this district for the offenses set forth in the indictment.
The court noted that the decision of whether a particular defendant may participate in a pretrial diversion program is entrusted to the United States Attorney. See United States v. Richardson, 856 F.2d 644, 647 (4th Cir. 1988). "Like other prosecutorial decisions, the government has broad discretion in determining which defendants are best suited for pretrial diversion." Id. (citing Wayte v. United States, 470 U.S. 598 (1985)). As such, these decisions are ill-suited to judicial review, and courts should be hesitant to examine the government's decision whether to prosecute. Richardson, 856 F.2d at 647 (quoting Wayte, 470 U.S. 598).
Counsel for the defendant requested that the court consider the time defendant has been on bond thus far as satisfying the agreement's requirement that she be supervised for a period of twelve months. This the court denied, concluding that it was incumbent upon the court to approve the agreement as entered into, with the twelve-month supervision period commencing August 11, 2008. After confirming that the defendant had no objection, the court APPROVED the agreement as stated. The defendant was then released on her previously executed personal recognizance bond and subject to the requirements of the pretrial diversion agreement.
The Clerk is directed to file the Agreement for Pretrial Diversion as an attachment to this Memorandum Opinion and Order, and to send a copy of both documents to counsel of record, the United States Marshal for the Southern District of West Virginia, and the Probation Office of this court.
It is SO ORDERED.
AGREEMENT FOR PRETRIAL DIVERSION
TO: MARTHA A. SANCHEZ-PINO
You have been charged by indictment with violating federal criminal law, to-wit: violations of Title 18, United States Code, Sections 1343, 1957, 1028A, 2 and Title 42, United States Code 408(a)(7)(B). Our investigation indicates that the ends of justice will best be served by placing you in a Pretrial Diversion Program.
In this program, you will be under the supervision of a federal probation officer for a period of twelve (12) months, and you must comply with the terms and conditions set by the probation officer which include, but are not limited to the following:
1. You shall refrain from violation of any law (federal, state and local). You shall get in touch immediately with your probation officer if arrested or questioned by a law enforcement officer.
2. You shall associate only with law-abiding persons and maintain reasonable hours.
3. You shall work regularly at a lawful occupation and when out of work or unable to work, you shall notify your probation officer at once. You shall consult your probation officer prior to job changes.
4. You shall not leave your judicial district without permission of the probation officer.
5. You shall notify your probation officer immediately of any change in your place of residence.
6. You shall follow the probation officer's instructions and advice.
7. You shall report to the probation officer as directed.
8. You shall support your dependents and meet other family responsibilities.
9. You shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substance, except as prescribed by a physician.
10. You shall not frequent places where controlled substances are illegally sold, used, distributed, or administered.
11. You shall not have a firearm in your possession at any time.
12. You shall not enter into any agreement to act as an informer or special agent of a law enforcement agency without the permission of the Probation Officer.
13. As directed by the Probation Officer, you shall notify third parties of risks that may be associated by your criminal record or personal history or characteristics, and shall permit the Probation Officer to make such notifications and to confirm your compliance with such notification requirement.
14. You shall submit to random urinalysis or any other drug screening method whenever the same is deemed appropriate by the Probation Officer and shall participate in a substance abuse program, including inpatient substance abuse treatment, as directed by the Probation Officer.
15. You shall be completely forthright and truthful with this office and federal agents with regard to any and all inquiries made of you. In addition, you will give signed, sworn statements and grand jury and trial testimony relative thereto. In any interviews conducted pursuant to this agreement, except appearances before the grand jury, you may have counsel present if you desire. Unless this agreement becomes void due to a violation of any of its terms by you, nothing contained in any statement or testimony given by you pursuant to this agreement or any evidence developed therefrom will be used against you directly or indirectly in any further criminal prosecution. However, this agreement does not prevent you from being prosecuted for any violations of federal and state laws you may have committed should evidence of any such violations be obtained from an independent legitimate source, separate and apart from that information and testimony being provided by you pursuant to this agreement. Moreover, this agreement does not prevent the United States from prosecuting you for perjury or the giving of a false statement to federal agents, if such a situation should occur by virtue of your not being fully forthright and truthful.
16. You shall submit a written report of your activity to the probation officer within the first three days of each month, as directed.
17. You shall comply with the terms of the attached "AGREED ORDER OF FORFEITURE AND CONSENT JUDGMENT".
Should you violate the conditions of this supervision, the United States Attorney may modify any conditions of this Pretrial Diversion Program or void the agreement and proceed to prosecute you on the offense(s) referred to above. Of course, the United States may release you from supervision at any time prior to the expiration of this Agreement.
Neither this agreement nor any other document filed with the United States Attorney as a result of your participation in the Pretrial Diversion Program will be used against you, except for impeachment purposes, in connection with any prosecution for the above-referenced violation.
If upon completion of your period of supervision a pretrial diversion report is received to the effect that you have complied with all the rules, regulations and conditions heretofore set forth, no prosecution for the violation set forth herein in this agreement will be instituted in this district.
This period of pretrial diversion under this agreement shall commence upon the date this agreement is approved by the United States District Court.
CHARLES T. MILLER United States Attorney By: R. BOOTH GOODWIN II R. BOOTH GOODWIN II Assistant United States Attorney Dated: 3/12/08I assert and certify that I am aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. I also am aware of my rights under the Speedy Trial Act of 1974, 18 U.S.C. § 3161, et seq., and that Rule 48(b) of the Federal Rules of Criminal Procedure provides that the Court may dismiss an indictment, information or complaint for unnecessary delay in presenting a charge to the grand jury, filing an information or in bringing a defendant to trial. I hereby request that the United States Attorney for the Southern District of West Virginia defer its prosecution of me for violations of Title 18, United States Code, Sections 1343, 1957, 1028A, 2 and Title 42, United States Code 408(a)(7)(B) for a period of twelve (12) months, and to induce him to defer such prosecution, I agree and consent that any delay from the date of this agreement to the date of the initiation of the prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at my request, and I waive any defense to such prosecution on the ground that such delay operated to deny my rights under 18 U.S.C. § 3161, et seq., and Rule 48(b) of the Federal Rules of Criminal Procedure, and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of twelve (12) months, which is the period of this agreement.
I hereby state that the above has been read and explained to me. I understand the conditions of my pretrial diversion and agree that I will comply with them.11/29/07 11/29/07 3/12/08 8/8/08 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON UNITED STATES OF AMERICA, Plaintiff, v. CIVIL ACTION NO. 2:05-1168 REAL PROPERTY SITUATED AT 198 OHIO RIVER HILL, MURRAYSVILLE, JACKSON COUNTY, WEST VIRGINIA, TOGETHER WITH ALL IMPROVEMENTS THEREON AND APPURTENANCES THERETO, Defendant. (Martha A. Sanchez-Pino, Criminal No. 6:06-00196; Hector A. Sanchez, Sr., No federal charges pending)
MARTHA A. SANCHEZ-PINO Date Signed GEORGE J. COSENZA Counsel for MARTHA A. SANCHEZ-PINO Date Signed R. BOOTH GOODWIN II Assistant United States Attorney Date Signed UNITED STATES PROBATION OFFICER Date SignedAGREED ORDER OF FORFEITURE AND CONSENT JUDGMENT
Comes now the United States of America, by counsel, Betty A. Pullin, Assistant United States Attorney for the Southern District of West Virginia, and the claimants, Martha A. Sanchez-Pino and Hector A. Sanchez, Sr., by their counsel, George J. Cosenza, Esquire, and Michael P. Hernandez, and hereby jointly represent to the Court that they have fully settled and compromised their respective claims to the defendant property on the terms and conditions set forth herein.Hector A. Sanchez, Sr., record owner of the defendant real property, through counsel, orally notified the United States of his interest in the defendant real property and thereafter filed an answer to the Verified Complaint in this case on or about February 15, 2006. The United States does not contest the form or timeliness of the claim and the answer.
Martha A. Sanchez-Pino, through counsel, orally notified the United States of her interest in the defendant real property prior to the expiration of any deadline for filing a claim with this Court. Inasmuch as Ms. Sanchez-Pino hereby wishes to settle this matter under the terms and conditions set forth herein, the record in this case will not reflect the filing of any claim or answer by or on behalf of Ms. Sanchez-Pino.
Ms. Sanchez-Pino admits that between June 1, 2005, and July 12, 2005, Sam Rodgers of Yorkshire, England, wire-transferred or caused to be wire-transferred a total of $312,000 into her account at People's Bank.
Ms. Sanchez-Pino does not contest the allegations set forth by the United States in paragraph 5(B)(5) of the Verified Complaint of Forfeiture that the balance of a mortgage previously obtained by her against the defendant real property, that is, the sum of $94,691.73, was paid in full by her on or about June 22, 2005, using a portion of the funds wire-transferred into her account at People's Bank on June 15, 2005, by Sam Rodgers of Yorkshire, England. Ms. Sanchez-Pino neither admits nor contests the further allegations of the United States in paragraph 5 of the Verified Complaint that the wire transfer of monies by Mr. Rodgers into Ms. Sanchez-Pino's account on June 15, 2005, and any other wire transfers he made into her account, may constitute one or more violations of 18 U.S.C. § 1343.
Ms. Sanchez-Pino hereby agrees to consent to the entry of judgment against her in the amount of $312,000, plus interest at the prevailing legal rate. Ms. Sanchez-Pino further agrees to forfeit to the United States, in partial satisfaction of this judgment, the following property the value of which shall be offset against the principal prior to the assessment of any interest:
(A) The sum of $24,050, more or less, in United States currency seized by law enforcement on or about December 14, 2005, from Peoples Bank Checking Account No. XXXXXX8109 (CATS No. 06-USP-000213); and
(B) One 2001 Chevrolet Silverado Pickup Truck, VIN 1GCEK19V21E251675, seized by law enforcement on or about December 14, 2005, from Ms. Sanchez-Pino's residence pursuant to a seizure warrant (CATS No. 06-USP-000214). The value of this truck to be offset against the principal shall be the net sales proceeds realized by the United States from the sale of this vehicle at public auction.
Ms. Sanchez-Pino further agrees, and Michael P. Hernandez hereby consents, to give the United States a security interest in and to the following assets:
Inasmuch as some of the assets enumerated herein are titled in the name of Ms. Sanchez-Pino's husband, Michael P. Hernandez, Mr. Hernandez, by signing this Agreed Order, hereby agrees and consents to a security interest and/or lien being placed against these assets by the United States.
1. One 1999 Raven SE Trailer, Vehicle Identification No. (VIN) 1R1F44823XK990313, registered with the West Virginia Division of Motor Vehicles in the name of Michael P. Hernandez;
2. One 2004 Arctic Cat All Terrain Vehicle, VIN 4UF04ATV042700587, registered with the West Virginia Division of Motor Vehicles in the name of Michael P. Hernandez;
3. One 1997 Ford F-250 Extended Cab Pickup Truck, VIN 1FTFX28LOVNB40561, registered with the West Virginia Division of Motor Vehicles in the names of Martha Sanchez-Pino or Michael P. Hernandez; and
4. One 2004 Carry On Trailer, VIN 4YMUL06134V031094, registered with the West Virginia Division of Motor Vehicles in the name of Martha A. Sanchez.
Ms. Sanchez-Pino further agrees to make monthly payments to the United States, for a period of thirty-six (36) months, towards the outstanding balance plus accrued interest owed under the judgment, with the remaining balance and any accrued interest to be paid in full in the thirty-sixth (36th) month. The monthly payment amount shall be within the discretion of Ms. Sanchez-Pino except that no payment shall be less than $750.00 per month. Each payment shall be in the form of a cashier's check made payable to the "U.S. Marshals Service" and shall be mailed or otherwise delivered, for receipt by the United States on the 10th day of each month, to Betty A. Pullin, Assistant United States Attorney, P.O. Box 1713, Charleston, West Virginia, 25326. The first payment is due February 10, 2008.
If at anytime during the payment period, Ms. Sanchez-Pino fails to make a payment, or on two or more occasions fails to make payments on time or fails to pay at least $750.00 per month, or fails to pay the balance due in the thirty-sixth (36th) month, she and Michael P. Hernandez consent and agree that the United States may seize, take possession of, or otherwise execute its judgment on the items in which they have given the United States a security interest under the terms of this order.
In addition, Ms. Sanchez-Pino and Michael P. Hernandez understand and agree that, in the event of default as outlined herein, the United States may seize, take possession of, or otherwise execute the judgment on any other property owned by them or by any entity in which they have an interest or which property is in their possession or under their control, excluding the real property being dismissed under the terms of this order unless at such time of default the said real property has been transferred, by deed, inheritance or otherwise, in whole or in part, to Ms. Sanchez-Pino or to any entity holding the property in trust for her. Any changes to the payment amount, payment schedule or other terms of payment must be authorized in writing, in advance, by counsel for the United States.
In consideration of the foregoing, the United States hereby agrees to the dismissal of this forfeiture action with prejudice and to the release of any interest it may have in the defendant real property owned by Hector A. Sanchez, Sr., based on the allegations set forth in the Verified Complaint of Forfeiture.
Martha A. Sanchez-Pino and Hector A. Sanchez, Sr., hereby agree to release the United States and its officers, employees and agents, including but not limited to the United States Postal Inspection Service from any and all claims and causes of action arising out of this forfeiture action.
NOW THEREFORE, based upon the foregoing representations of counsel, the Court ORDERS that judgment be and the same hereby is entered against MARTHA A. SANCHEZ-PINO in the principal amount of $312,000, plus interest at the prevailing legal rate.
The Court further ORDERS that the following property, seized from Martha A. Sanchez-Pino on or about December 14, 2005, be and the same hereby is FORFEITED to the United States free and clear of any interest she may have in the said property and that the currency and the net proceeds from the public sale of the truck shall be applied by the United States towards satisfaction of Ms. Sanchez-Pino's judgment, prior to the assessment of any interest:
1. The sum of $24,050, more or less, in United States currency seized from Peoples Bank Checking Account No. XXXXXX8109 (CATS No. 06-USP-000213); and
2. One 2001 Chevrolet Silverado Pickup Truck, VIN 1GCEK19V21E251675 (CATS No. 06-USP-000214).
The Court further ORDERS that the United States shall publish notice of the forfeiture of the currency and truck as directed by law.
The Court further ORDERS that the United States shall record or cause to be recorded a lien or such other notice of the entry of judgment against Martha A. Sanchez-Pino as the United States deems appropriate and as authorized by law.
The Court further ORDERS that the defendant real property is hereby DISMISSED from forfeiture in this case, with prejudice.
The Court further ORDERS that the Attorney General, or his authorized designee, shall seize and take possession of any currency and other personal property forfeited under the terms of this order and shall protect and maintain custody of them until further order of this Court.
The Clerk is directed to send certified copies of this Order to counsel of record; to Linda Mosesso, Forfeiture Specialist, U.S. Postal Inspection Service, 1001 California Avenue, Pittsburgh, Pennsylvania, 15290-9000; and to Burl Fluharty, U.S. Postal Inspector, P.O. Box 1308, Charleston, West Virginia, 25325-1308.
IT IS SO ORDERED.s/Betty A. Pullin betty.pullin@usdoj.gov
ORDER PREPARED BY: Betty A. Pullin, WV Bar Number: 5590 Attorney for the United States United States Attorney's Office 300 Virginia Street, East, Room 4000 Charleston, West Virginia 25301 Telephone: (304) 345-2200 Fax: (304) 347-5104 Email: ORDER SEEN AND AGREED TO BY: MARTHA A. SANCHEZ-PINO HECTOR A. SANCHEZ, SR. GEORGE J. COSENZA, Esquire Counsel for Martha A. Sanchez-Pino and Hector A. Sanchez, Sr. MICHAEL P. HERNANDEZ.