IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO STATE OF

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO STATE OF Powered By Docstoc
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                          IN THE COURT OF APPEALS
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                               STATE OF ARIZONA
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                                 DIVISION TWO
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     STATE OF ARIZONA ,             )   2 CA-CR 2009-0194
 6                                  )   Department A
                   Appellee,        )
 7                                  )   Pima County Superior
         vs.                        )   Court Cause No. CR2003-2704
 8                                  )
     AARON ARREDONDO,               )
 9                                  )
                                    )
10                                  )
                      Appellant.    )
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                   APPELLANT’S OPENING BRIEF
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                                    LAW OFFICES OF ROGER H. SIGAL
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17                                  ROGER H. SIGAL
                                    447 South Meyer Avenue
18                                  Tucson, Arizona 85701
                                    Tel: (520) 624-6222
19                                  State Bar # 13094
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                                    ATTORNEY FOR APPELLANT
21                                  AARON ARREDONDO

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 1                                ISSUES FOR REVIEW
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 3
 4 1.     Whether Defendant was denied his Sixth Amendment right to counsel of
          choice when the trial court denied his motion to continue to allow
 5        substitution of his appointed attorney, with whom he had an irreconcilable
          conflict, no trust, and no input into his defense, with the retained attorneys
 6        he had chosen.

 7 2.     Whether the trial court abused its discretion in allowing the financial fraud
          investigator to apply his expertise to the facts of the case in providing his
          legal conclusion that Arredondo’s conduct constituted a Ponzi scheme.
 8
 9 3.     Whether the court erred in admitting other act evidence where prior to
          admission, it failed to make a determination by clear and convincing
10        evidence of their commission, failed to specify its proper purpose, failed
          to require the State to specify its proffered purpose justifying admission,
11        and admitted a multitude of prior acts well beyond those the State
          proffered at the pre-trial hearing.
12
13 4.     Whether Defendant’s confrontation right was violated and whether the
          court erred by admitting the investigating agent’s hearsay testimony that
14        an un-named person at a federal agency told him that “there was no
          record” of the bank which was at the heart of the State’s case for fraud
15        and theft.
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     5.   Whether the trial court violated Arizona’s double punishment statute in
17        imposing consecutive sentences for the same act.

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28                                              i
 1                                          TABLE OF CONTENTS
                                                                                                             PAGES
 2
     ISSUES FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
 3
     TABLE OF CONTENTS . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
 4
     TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
 5
     STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
 6
     STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
 7
     A.      RELEVANT PRETRIAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . 2
 8
     B.      THE TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
 9
     ARGUMENT ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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              Defendant was denied his right to retained counsel of choice where
11            the court required him to proceed to trial represented by an attorney he
              did not trust, with whom he had an actual conflict of interest, where
12            Defendant had no input into his defense, and where all prior
              continuances were the result of the protracted medical leaves of
13
              appointed trial counsel, the unethical practices of previous retained
              counsel, and of the attorneys’ trial schedules.
14 A.        STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
15 B.        APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16 C.        LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17 ARGUMENT TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18            The trial court abused its discretion in allowing the financial fraud
              investigator to apply his expertise to the facts of the case in providing
19            his legal conclusion that Arredondo’s conduct constituted a Ponzi
              scheme.
20
21 A.        RELEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

22 B.        STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

23 C.        LEGAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

24 D.        LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
     ARGUMENT THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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              The court erred in admitting other act evidence because it did not
26            require the state to specify the prior acts, their proper purpose, or to
              prove their commission by clear and convincing evidence, prior to
27            admission, and as a result, admitted extremely repetitive prejudical
              evidence.
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                                                              ii
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     A.      RELEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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     B.      STANDARD OF PROOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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     C.      LEGAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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     D.      LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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     ARGUMENT FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
 6
               The court violated Defendant’s right to confrontation and abused its
 7             discretion by admitting the investigating agent’s hearsay testimony
               that an un-named person at a federal agency told him that “there was
               no record” of the bank which was at the heart of the state’s case for
 8             fraud and theft where there was no showing of unavailability or prior
               opportunity for cross-examination.
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     HEARSAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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     A.      STANDARD OF PROOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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     B.      LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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     CONFRONTATION CLAUSE VIOLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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     A.      APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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     B.      LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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     C.      PREJUDICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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     ARGUMENT FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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               The trial court’s decision to impose Defendant’s five-year sentence
18             for conspiracy consecutive to Defendant’s five-year sentences for theft
               and fraud schemes violated Arizona’s double punishment statute
19             because under Gordon, the crimes did not constitute multiple acts.
     A.      STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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     B.      APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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     C.      LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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     CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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     CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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28                                                            iii
 1                              TABLE OF CASES AUTHORITIES
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     CASES                                                                                 PAGES
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     Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471 (Div. Two 2006) . . . 36, 38
 4
     Crawford v. Washington,
 5
            541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) . . . . . . . . . . . . 37, 38
 6
     Huddleston v. United States,
 7          485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) . . . . . . . . . . . . . . 30
 8 Illinois v. Vitale,
 9          447 U.S. 410, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980) . . . . . . . . . . . 40
10 Knapp v. Hardy, 111 Ariz. 107, 112, 523 P.2d, 1308, 1313 (1974) . . . . . . . . . . . 21
11 Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed. 2d 610 (1983) . . . . . . . . 14
12 Webb v. Omni Block, Inc., 216 Ariz. 349, 166 P.3d 140 (App. 2007) . . . 23, 24, 25
13 State v. Alexander, 175 Ariz. 535, 858 P.2d 680 (App. 1993) . . . . . . . . . . . . . . . 41
14 State v. Anthony, 218 Ariz. 439, 189 P.3d 366 (2008) . . . . . . . . . . . . . . . . . . . . . 31
15 State v. Aragon,
16           221 Ariz 88, 210 P.3d 1259 (2009) . . . . . . . . 13, 14, 15, 16, 18, 19, 20, 22

17 State v. Carreon, 10 Ariz. 54, 107 P.3d 900, 920-21 (2005) . . . . . . . . . . 41, 42, 44
18 State v. Coghill, 216 Ariz. 578, 169 P.3d 942 (App.2007) . . . . . . . . . . . . . . . . . . 18
19 State v. Cook, 185 Ariz. 358, 916 P.2d 1074 (App. 1995) . . . . . . . . . . . . . . . . . . 43
     State v. Gordon, 161 Ariz. 308, 778 P.2d 1204, (1989) . . . . . . . . . . . 41, 42, 43, 44
20
     State v. King, 212 Ariz. 372, 132 P.3d 311 (App. 2006) . . . . . . . . . . . . . . . . . . . 38
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     State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986) . . . . . . . . . . . . . . . . . . . 25, 26
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     State v. Madrid, 105Ariz. 534, 468 P.2d 561 (1970) . . . . . . . . . . . . . . . . . . . . . . 21
23
     State v. Miller, 111 Ariz. 321, 529 P.2d 220 (1974) . . . . . . . . . . . . . . . . . . . 20, 32
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     State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001) . . . . . . . . . . . . . . 29, 31, 33
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     State v. Rosberry, 210 Ariz. 360, 111 P.3d 402 (2005) . . . . . . . . . . . . . . . . . . . . .42
26
   State v. Roscoe, 184 Ariz. 484, 910 P.2d 635, 642, cert denied,
27        519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996) . . . . . . . . . . . . . . . . 29
28                                                  iv
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     State v. Smyers,
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              205 Ariz. 479, 73 P.3d 610 ( 2003), reversed on other grounds, . . . . . . . 29
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     State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194 (1997) . . . . . . 229 29, 31, 33, 34
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     State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1972) . . . . . . . . . . . . . . . . . . . . 41
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     State v. Urquidez, 213 Ariz 50, 138 P.3d 1177, rev. den. 213 Ariz. 50 (2006) .                                        40
 6
 7 United States v. Gonzalez-Lopez,
 8            548 U.S. 140, 126 S.Ct.. 2557, 2562, 165 L.Ed.2d 409 (2006) . . . 13, 14, 15
 9 United States v. Scop, 846 F.2d 135, 140 (2d Cir.1988) . . . . . . . . . . . . . . . . 26, 27
10 Webb v. Omni Block, Inc., 216 Ariz. 349, 166 P.3d 140 (App. 2007) . . . . 24, 25, 26
11 ARIZONA RULES OF COURT
12 Rule 6.3 ( c ) Ariz.R.Crim.Proc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18
13 Rule 104(b), Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
14 Rule 105, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3028
15 Rule 402, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31
16 Rule 403, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 34
17 Rule 404 (b), Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28, 29, 31, 33
18 Rule 704, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
19
     Rule 801, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
     Rule 802, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
20
     Rule 803 (6), (7), Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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     Rule 807, Ariz.R.Evid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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     ER 1.2, Ariz.R.Prof.Con. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23
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     ARIZONA REVISED STATUTES
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     § 11-587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18
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     § 12-120.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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     § 13-116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38, 39
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                                                                 v
 1 § 13-2310
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 3 UNITED STATES CONSTITUTION
 4 Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18, 19, 21, 23, 30, 31
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 6 TREATISES
                                       th
 7 McCormick on Evidence § 12, at 60 (6 Ed. 1999) . . . . . . . . . . . . . . . . . . . . . . 25
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28                                                    vi
 1                                STATEMENT OF THE CASE
 2 ¶1       This is an appeal from the conviction and sentence imposed against Aaron
 3 Arredondo. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21 and 13-4031.
 4 ¶2       Aaron Arredondo and William Randall were each indicted for one count of

 5 conspiracy, one count of fraudulent schemes and artifices, and one count of theft.
            1
 6 (ROA # 1) The co-defendant pleaded guilty pursuant to a cooperation agreement and
 7 testified against Arredondo. (ROA # 59, 61, 178) The indictment against Arredondo
     was amended to allege aggravating circumstances under Blakely v. Washington. (ROA
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     # 88, 94).
 9
     ¶3     Two weeks prior to trial, the parties argued Defendant’s motion to continue trial
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     to allow Defendant to be represented by retained counsel of choice. (ROA # 162) That
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     motion was denied. (ROA # 171). Arredondo filed an emergency petition for special
12
     action and request for stay of trial.2 By its June 28, 2006 order, this Court denied the
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     requested stay.
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     ¶4     After a jury trial conducted in absencia, (ROA # 175, 181) Arredondo was found
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     guilty of all three charges. (ROA # 88, 89). As to each charge, the jury determined that
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     the property / benefit involved was greater than $ 100,000 and that the offense was
17
     committed for pecuniary gain. Id. The court issued an order for Defendant’s arrest.
18 (ROA # 181).
19 ¶5   On May 26, 2009, over objection, Arredondo was sentenced to the presumptive
20 sentence of five years on each charge, with the sentence for Conspiracy to run
21 consecutive to counts two and three. (ROA # 285). Arredondo was given credit for
22 367 days credit and ordered to pay $ 12,425,177 in restitution. (Id.). A Timely Notice
23 of Appeal was filed on Arredondo’s behalf. (ROA # 288).
24
            1
25          ROA #       refers to the document number in the instant Record On Appeal. RT refers to
     the Reporter’s Transcripts. Ex.     refers to the Exhibit Number.
26
            2
             Through its February 23, 2006 order, this court took judicial notice of the Special Action
27   proceedings of 2 CA-SA 2006-0053.

28                                                   1
 1                                STATEMENT OF FACTS
 2 A. RELEVANT PRETRIAL PROCEEDINGS
 3   ¶6     On April 15, 2004, Defendant first appeared in court, and Matilda Slade was
 4   appointed as his counsel. (ROA # 44, 50). On July 19, 2004, California Attorney

 5   Cordova substituted for Slade, admitted pro hac vice. (ROA # 71-72). On July 26,

 6   2004, after government’s counsel’s represented that “December 7 th is the soonest we

 7   can get this to trial,” trial was scheduled for that date. (RT 6-26-04, 8, ROA # 83).
     ¶7     Upon the parties’ joint motion, the court continued the December, 2004 trial
 8
     until May 3, 2005. (ROA # 90, 94). Both attorneys represented that their trial
 9
     calendars and the case complexity were such that neither attorney could try the case
10
     on December 7. (ROA # 90).
11
     ¶8     On April 11, 2005, at the State’s request, the May trial date was continued.
12
     (ROA # 108, RT 4-11-2005, 2, 14) While the State did not file a written motion, in
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     Cordova’s Motion To Withdraw, he explained the State sought a continuance until
14
     July or August, 2005 due to the prosecutor’s “engagement in another complex criminal
15
     matter.” (ROA # 108, 2). The continuance was also necessitated because Defendant
16
     was left without counsel when the Court granted Cordova’s motion. (RT 4-11-05, 3).
17
     At the status conference, Cordova explained why he sought to withdraw: “I have
18   strongly urged my client to accept the offer, but it is in his best interest that he accept
19   the offer and that . . .” Arredondo was refusing to plead guilty. Id. The court
20   conducted a Donald hearing, and scheduled a hearing one month later to determine
21   whether Arredondo had succeeded in retaining new counsel. (RT 4-11-05, 12-13,
22   ROA # 109).
23   ¶9     On May 11, 2005, Arredondo indicated he was still seeking to retain counsel.
24   (RT 4-11-05, 2). The court ordered appointment of Assistant Public Defender Brault,
25   at least until Arredondo retained private counsel. (Id., 3, ROA # 112). At a June 1,
26   2005 hearing, Brault explained that he had not yet received disclosure. (RT 6–01-
27   2005, 4). He understood, however, that it was “fairly voluminous.” (Id.). That was

28                                               2
 1   a huge understatement. Over three months prior to Brault’s appointment, thirty
 2   disclosures totaled 6,889 pages. (ROA # 101). Though the case had been pending for
 3   sixteen months, Brault was starting from scratch. (RT 6-01-05, 4).
 4   ¶10        At the hearing, Brault explained that he would be taking family medical leave

 5   from September through the end of 2005.             (Id., 4-5).   The prosecutor was also

 6   unavailable for trial for the “majority” of Brault’s leave because he would be in long

 7   trial. (Id., 8). The prosecutor explained,: “we can’t think about when we’re going to
     start a trial until 2006.” (Id. p. 5).
 8
     ¶11        At an August 1, 2005 hearing, Brault explained that he had conducted “at least
 9
     an initial assessment of the case.” (RT 8-01-05, 3). Brault clarified he was “still in
10
     the process of doing that [initial assessment].” (Id., 4). The court was again advised
11
     of the prosecutor’s trial during Brault’s medical leave, and that he was therefore also
12
     unavailable. (Id.). Brault indicated that the “first potentially feasible” trial date would
13
     be in April, 2006, but that he would have a “better idea” in late September if that was
14
     “realistic.” (Id.,4- 5). The court did not set another trial date. (Id, 5).
15
     ¶12        At a September 28, 2005 hearing, Brault indicated he was “starting to become
16
     free” for trial in April. (RT 9-28-05, 4). Accordingly, the court scheduled trial for
17
     April 4, 2006. However, following Brault’s return from medical leave, on February
18   10, 2006, he filed Defendant’s First (not joint) Motion To Continue, advising that he
19   was scheduled for surgery on April 7, 2006. (ROA # 123). At a February 17, 2010
20   hearing, Brault also explained:
21
                I sorely underestimated the amount of work that was going to be
22              involved with getting a trial of this magnitude prepared. I sorely
                underestimated 3 the level of preparedness of Mr. Cordova . . . I also
23              overestimated any work to get done during my three months leave of
                absence. At Mr. Evans’ insistence that I wasn’t going to get anything
24              done [not] having had children before, he was right. I didn’t get any
                work done on this while I was out. so . . . I’m asking for a trial
25              continuance.
26
            3
             While Brault used the word “underestimated,” the context indicates he meant
27   “overestimated.”
28                                                  3
 1
     (RT, 2-17-06, 5). Brault advised that June was the earliest he might be ready because
 2
     he needed that time “at a bare minimum to be possibly prepared.” (Id., 6). The
 3
     court set another hearing to schedule trial. (Id., 11).
 4
     ¶ 13   On February 28, 2006, Judge Browning advised he had scheduled trial for June
 5
     27, 2006. (RT 2-28-06, 3). Pursuant to the parties’ stipulation, the judge postponed
 6
     trial by 2 days to June 29, 2006. (ROA # 153, 157). One month before trial, on May
 7   25, the case was re-assigned to Judge Fields. (ROA # 149). On June 15, two weeks
 8   before trial, Judge Fields heard Defendant’s motion to continue to allow substitution
 9   of counsel. (ROA #163).
10   ¶ 14 On June 15 and 20, 2010, California Attorney Richards argued his motion
11   (ROA #162). He explained that he needed two months to be prepared for trial (RT,
12   6-15-06, 10). Richards explained Defendant’s problems with appointed counsel
13   which necessitated substitution. Richards explained that continuity of communications
14   was poor between Defendant and Brault due to Brault’s two separate medical leaves.
15   (RT, 6-20-05, in camera,5). Consequently, Defendant had not had “any input” in
16   preparing his defense and lacked complete confidence in Brault’s ability to effectively

17   represent him. (Id., 8).

18   ¶ 15 In camera, Defendant explained he had an “abrasive” and “adversarial”

19
     relationship with Brault for “months and months,” and that he was “almost scared to
     talk to him.” (Id., 3-5). The most recent problem exacerbating Defendant’s mis-trust
20
     occurred when Brault failed to mail Defendant the Trial Acknowldgement, resulting
21
     in the State’s April, 2006 motion to revoke his bond. (Id., 4-5, ROA # 138).
22
     Arredondo explained, however, that “there was a breakdown months ago, before he
23
     went out on his medical leave.” (Id. p. 5.). He also explained that due to the case
24
     complexity and the voluminous disclosure, he had never believed Brault was capable
25
     of representing him. (Id., 2). Since Arredondo “first hired Richards,” he had been
26
27
28                                              4
 1   asking Brault to withdraw.4 (Id., 4).
 2   ¶ 16 Richards explained that Brault’s refusal to advocate for Arredondo’s clearly-
 3   stated wishes for new counsel exacerbated Arredondo’s mistrust and their conflict of
 4   interest. (Id., 12). Even through the June 20, 2006 hearing, Brault refused to request

 5   withdrawal, arguing that Rule 6.3 ( c) Ariz.R.Crim.Proc. prohibited him from doing

 6   so, absent substituting counsel’s affidavit confirming his trial readiness. (RT 6-20-06,

 7   8-9, not in camera) The constitutional right to counsel of choice, Richards argued,
     is subordinate to such court procedural rules. (RT 6-15-06, 9, 13). He also argued
 8
     that § 11-587 (requiring the Public Defender to move to withdraw upon retention of
 9
     private counsel ) unambiguously required Brault to move to withdraw. (Id., 4-11).
10
     The State agreed with Brault, arguing that 6.3 ( c) prohibited Brault’s motion. (Id., 5-
11
     6). Defendant argued the State had no standing to argue the withdrawal issue. (Id, 21).
12
     Ultimately, Brault orally moved to withdraw only after the judge ordered: “Mr.
13
     Brault, consider the requirement of 6.3 to be waived.” (Id, 11).
14
     ¶ 17 The State argued that present appointed counsel was competent and ready for
15
     trial. (RT 6-15–06, 20, RT 6-20-06, 29). The court appeared to adopt the State’s
16
     reasoning, emphasizing Brault’s competence and readiness. (Id., 29). In denying the
17
     motion, the court also emphasized its belief that all prior trial continuances had been
18   for Arredondo’s benefit. (Id, 14-15, RT 6- 15-06, 14). Richards outlined how the
19   first continuance was necessitated by Cordova’s unconscionable retainer agreement,
20   and how the last two continuances were the result of Brault’s medical leaves and the
21   prosecutor’s trial schedule. (RT 6-15-06, 14-15, RT, 6-20-06, 14-16). Defendant
22   submitted a personal Declaration and his retainer agreement with Cordova. (ROA,
23   164). That agreement gave Cordova, without limitation, the right to withdraw “if
24   Client fails to follow the advice or Instruction of Attorney.” (ROA # 164, Exhibit
25   Two). Arredondo’s Declaration explained Cordova withdrew because Defendant
26
               4
                   Richards explained that Defendant contacted him to retain him in January, 2006 (RT 6-
27   20-06).
28                                                        5
 1   would not follow Cordova’s advice to plead guilty. (ROA # 164, Exhibit One, ¶ 8).
 2   ¶ 18   Finally, the State argued that Defendant’s motion “given the history of the case
 3   is definitely tactical.” (RT 6-20-06, 24). The Court echoed those concerns, explaining
 4   it was concerned with the “timing” of the request. (Id, 29). Defendant explained, and

 5   Brault confirmed, that from the beginning of their relationship, Defendant

 6   unequivocally expressed his intent to retain counsel. (Id., in camera 24). Defendant

 7   outlined his efforts. As soon as he raised the funds, around January, 2006, Defendant
     contacted Richards. (Id., 31). Richards then obtained disclosure from Brault in
 8
     January, to evaluate the case. (Id.). Brault confirmed these facts. (Id., 16). To avoid
 9
     delay, Richards had asked Brault if Brault could serve as local counsel or move for
10
     Richards’ admission pro hac vice. (RT 6-20-06, Id., 8). Brault explained that his
11
     office declined to move for Richard’s admission, believing this was not an appropriate
12
     use of Public Defender resources. (Id., in camera, 16). Instead, Brault gave Richards
13
     a list of attorneys who might serve as local counsel. (Id.; RT 6-15-06, 31). In March,
14
     Richards found Sigal, who agreed to serve as local counsel, quoting a substantial
15
     retainer fee. (Id., 4, 31, RT 6-20-06, 26). The delay from March to June 6, resulted
16
     from Arredondo’s difficulties in raising the necessary funds to hire Sigal. (Id., 23, 26-
17
     27, Id., in camera, 4).   By June 6, Arredondo had raised the funds. (RT 6-15-06, 8,
18   31). After allowing three days for Defendant’s check to clear, on June 9, 20 days
19   before trial, Richards advised the prosecutor he was seeking substitution. (Id.).
20   B.     THE TRIAL
21   ¶ 19   In closing arguments, the State summarized its view of the case, repeating one
22   theme seven times: the “Aaron Arredondo production with Assistant William Randall
23   . . .”: “[b]rought to you by Aaron Arredondo, the guy with the great suit, great show,
24   the great cars, and terrific watch. . . terrific watch.” (RT 7-12-06, 5, 41, also 5, 18,
25   19, 46, 47). The State concluded its closing remarks similarly:
26          I’m driving around in a Mercedes that has a little TV in the back of the
            passenger seat so you can be entertained while I travel. Aaron
27          Arredondo, great watches don’t work anymore. Aaron Arredondo, great

28                                              6
 1         cars don’t work anymore. Aaron Arredondo, great show is over. You’re
           writing the finish. You’re holding him responsible for the crime he’s
 2         committed. This is the end. The Great Ponzi scheme is over. The Aaron
           Arredondo production is folded. (Id. p 47).
 3
     In closing arguments, on 15 different occasions, the prosecutor characterized
 4
     Defendant’s conduct as a “Ponzi scheme,” based upon that conclusion drawn by
 5
     investigating agent Kenneth Johnson. (Id., 6, 8, 9, 19, 20, 41, 42, 44, 45).
 6
     ¶ 20 The State’s theory, as presented by the case agent’s testimony, was that
 7   Arredondo, with the help of his attorney and co-defendant, William Randall, who
 8   cooperated against Arredondo, used the investment monies of the charged victim,
 9   Douglas Seaver, to pay off prior investors, and not for the promised investment
10   purposes. Investors deposited their monies in Randall’s trust account and Randall
11   disbursed them, at Arredondo’s instruction. (RT 6-30-06, 184). The State’s case was
12   based primarily upon Johnson’s and Seaver’s testimony, as buttressed by four other
13   investors, who over Defendant’s 404(b) objection, were allowed to testify that they
14   and many other named investors, had been victimized by Arredondo. (RT 6-30-06,
15   104-109).
16   ¶ 21 Alex Wilson, introduced Seaver to Arredondo. (Id., 144-48) As with almost

17   all witnesses, the prosecutor, thorough very specific questions, elicited from Wilson

18   and Seaver testimony about Arredondo’s appearance: expensive clothes, watch, and

19
     car, with all of the “bells and whistles.” (RT 7-5-06, 6-7, RT 6-30-06, 141-42, RT 7-
     05-06, 77, RT 7-11-06, 23-24).
20
     ¶ 22 Seaver was a very successful architect, who had built many commercial
21
     developments throughout the country, including La Paloma. (Id., 178). Seaver was
22
     a sophisticated investor who defined for the jury several types of investments with
23
     which Arredondo was involved, including           debt instrument liquidation, and
24
     hypothecation. (RT 7-5-06, 7-10). Based upon account statements from Wilson,
25
     showing his investments were growing rapidly, Seaver invested three times with
26
     Arredondo, through joint venture agreements, beginning with an initial March, 2001
27
28                                             7
 1   $ 200,000 investment and ending with his last investment on December 3, 2001 of one
 2   million     d olla rs .   (Id.,   22-40,       RT    6-30-06,       186-189).¶        23
 3          The million-dollar agreement provided that the investment would be secured
 4   by a CD issued by an American or European bank. (Ex. 88). On January 12, 2002,

 5   Randall sent Seaver a letter advising that Randall had received an interbank

 6   communication confirming that a $ 6. 5 million Reserved Cash Certificate (hereafter,

 7   “Certificate”) was issued by International Trust Bank (hereafter “ITB”), of which
     $ 1.25 million had been assigned as security for Seaver’s investment. (RT 7-5-06,
 8
     50, Ex. 116). One day after his million-dollar investment, Arredondo paid Seaver $
 9
     80,000, as a personal contribution to Seaver’s non-profit foundation. (RT 7-5-05, 41-
10
     42).
11
     ¶ 24   Seaver testified there were “two factors” which made him feel safe in investing.
12
     (RT 6-30-06, 184). First, was the involvement of an attorney, Randall, who serving
13
     as “gatekeeper,” would not let money in or out without the proper documentation or
14
     instruction. (Id.). Second, was Arredondo’s representation, as verified by Randall,
15
     that he had control over the Gilbert Family Trust, which secured his investments. (RT
16
     6-30-06, 191). Prior to Seaver’s million-dollar investment, Randall sent him a
17
     financial statement which led Seaver to believe that the Trust had $ 21 million as
18   security for Arredondo’s investments. (Id.). Seaver instructed Randall not to release
19   those funds until Seaver’s banker had verified that those funds served as security. (Id.,
20   191-92). When Randall did not provide the information required, Seaver advised him
21   not to release the funds. (Id., 192). Randall advised that he had already released the
22   funds. (Id.). Extremely concerned, Seaver called Arredondo, who reassured him that
23   the funds were properly invested and growing. (Id., 192-93). Finally, on April 16,
24   2002, Randall requested the return of his $1,580,000 investment. (7-5-06, 43-44).
25   Arredondo flew to Tucson to meet with Seaver, assuring him that his funds were
26   growing and confirmed Seaver’s statement that soon, his account would probably
27   exceed $12 million. (Id., 46). When Seaver tried to recoup his investment, Arredondo

28                                              8
 1   provided a number of reasons why it wasn’t available. (Id., 52-53). In each of these
 2   conversations, Seaver believed Arredondo “truthfully sounded very sincere.” (Id., 53).
 3   Eventually, Seaver hired attorneys and obtained a judgment for $ 12,435,177. (Id.,
 4   56).

 5   ¶ 25 Randall cooperated and testified for the State.         He was originally facing

 6   mandatory prison ranging from three years to 12 ½ years. (RT 7-11-06, 5). Instead,

 7   in exchange for his testimony, he entered a plea agreement whereby he would receive
     probation and restitution. (Id., RT 7-06-06, 104-105). When Randall met Arredondo,
 8
     his practice had gone “[d]own the tubes,” due to his health problems and a lack of
 9
     clients. (RT 7-6-06, 8). He told Arredondo and other investors he was a law
10
     professor teaching contract law. (RT 7-11-06, 26; RT 5-26-09, 58). In December,
11
     1999, the two entered a retainer agreement whereby Arredondo paid him $10,000 per
12
     month. (RT 7-6-06, 8). Over two years, he received approximately $175,000. (Id.).
13
     Randall had never previously been paid such fees. (Id., 8-9).
14
     ¶ 26   Randall testified about the Gilbert Trust Fund documents, which Arredondo had
15
     given him to review. (Id.,11-23). Randall held the Power of Attorney, whereby Ron
16
     Gilbert granted Arredondo full authority over his interest in the Gilbert Trust. (Id.,
17
     12). Randall examined the documents, concluding that the Power of Attorney enabled
18
     the trust to secure Arredondo’s investors’ monies. (Id., 12). Despite the facts that the
19   Power of Attorney (“POA”) was expressly revokable at will (Ex. 1), and that the Trust
20   had a spendthrift provision, prohibiting any beneficiary from encumbering it (Id., 19),
21   Randall testified that he believed that disbursements were owed to Ron Gilbert, and
22   that Ron’s interest could serve as security. (Id., 12-19). Randall wrote to the trust
23   attorney demanding that Ron’s monies be disbursed to Randall, pursuant to the POA.
24   (Id., 16). The attorney responded, advising that Ron had no interest until his mother
25   died. (Id., 16-17). Though Randall testified that his “general practice” was to relay
26   to Arredondo information relating to Arredondo’s business, he did not specifically
27   remember informing Arredondo about the trust attorney’s letter. (Id., 18). Randall
28                                              9
 1   claimed that his negligence and inexperience with trusts caused him to mis-read the
 2   trust. (Id., 20, 22).
 3   ¶ 27   John Engerbretson, a Harris Bank Officer, confirmed that, in fact, Ron Gilbert,
 4   had no present claim to the Trust monies at his bank. (RT 7-11-06,11). He also

 5   confirmed the      accuracy of an account statement Arredondo provided Randall,

 6   reflecting a trust value of $ 3,147,282.98. (Id., 13). However, all distributions to Ron

 7   Gilbert were contingent on his mother’s death. (Id., 10) Even then, he would receive
     only 1/7 of the trust. (Id.,15). Engerbretson also explained that the trust’s spendthrift
 8
     provision prohibited its use as security for investments (Id., 17).
 9
     ¶ 28 Because investments were growing, Arredondo found additional collateral –
10
     the Certificate – to secure all investments. (RT 7-6-06, 23). Randall made partial
11
     payment for the Certificate, wiring $ 187,500, to the bank holding that Certificate.
12
     (Id., 30-31).    He acknowledged his bank had received the S.W.I.F.T. message
13
     confirming that Baltic Trust Company was holding the Certificate for Randall’s
14
     benefit. (Id., 23-31, Ex. 40-42b, 94).
15
     ¶ 29 Randall testified that he never knew if money deposited into his trust account
16
     was investor funds or a return on one of Arredondo’s investments. (Id., at 40). While
17
     he knew that some disbursals directed by Arredondo went to investors, he did not
18
     know who many recipients were. (Id.). The prosecutor asked if Randall would
19   characterize the distribution of funds as a Ponzi scheme. (Id., 102).         The court
20   sustained Defendant’s objection that the question called for a legal conclusion. (Id.).
21   When asked if he thought there was something wrong with paying one investor with
22   another investor’s monies, Randall answered, over objection: “I subdued any thought
23   I had about any improprieties that might have occurred.” (Id.).       He pleaded guilty
24   because he ignored, “either consciously or unconsciously red flags” and followed
25   Arredondo’s instructions without “proper questioning what was going on.” (Id., 106).
26   ¶ 30 Finally, the prosecutor asked Randall if his plea agreement required not only
27   that he pay Seaver over $ 12 million but also “a whole bunch of other people . . .to pay
28                                              10
 1   as a second priority.” (Id., 105-106). Reading from a list in Randall’s plea agreement,
 2   which was not admitted, the prosecutor read four of those investors’ names, asking if
 3   they were among those individuals. (Id.). Randall responded affirmatively. (Id.). The
 4   prosecutor asked, and Randall confirmed, that his guilty plea required him to pay

 5   Seaver $12 million and $ 9 million dollars to the other investors. (Id., 106).

 6   ¶ 31   Nick Singh, was one of four other investors who testified over Defendant’s

 7   404(b) objection. (RT 7-7-10, 33-64). Because Singh’s first investment was so
     successful, he signed other agreements, investing with five others at first. (Id, 37-39,
 8
     41-42). Singh provided no testimony about Seaver. (Id., 32-65). Even though he
 9
     was “pretty sure” that Arredondo paid Singh’s entire principal back (Id., 63), Singh
10
     testified about difficulties other investors encountered in getting paid their returns and
11
     explained his efforts to recoup their monies. (RT 7-7-06, 53-54, 56).
12
     ¶ 32 Alex Wilson also testified. Prior to investing, Wilson testified that his first
13
     successful investment with Arredondo caused him to increase it, and to recommend
14
     Arredondo to eight to twelve people, who also invested. (Id., 29, 145-47). Wilson
15
     sent Seaver financial statements reflecting his investment was rapidly growing. (Id.,
16
     186). Wilson also recommended that Seaver increase his investment. (Id.). Wilson,
17
     it turned out, admitted to having been previously convicted of Misprision Of A Felony
18
     as a telemarketer for lying to fifty people a day. (RT 6-30-06, 134-35, 172-73).
19   Though Wilson recouped $ 150,000 of his $ 160,000 investment , the court allowed
20   him to explain his attempts to get other named investors paid. (Id., 37-40). After
21   about 1 ½ to 2 years, all payments from Randall and Arredondo stopped. (Id., 43).
22   ¶ 33   Michael Whitman was also testified about his investment losses . (RT 6-05-06,
23   72-110). Whitman was advised that the Gilbert Trust secured his investments. (Id.,
24   84). While he was first told that the Trust had approximately $ 2.1 million, Randall
25   later wrote him, stating that the Trust had grown to $ 21 million. (Id., 87, 88).
26   Randall claimed that the letter did not bear his true signature. (RT 7-6-06, 34-35).
27   Whitman also explained two friends’ negative investment experiences, even before
28                                              11
 1   Whitman began investing. (Id., 82, 68-69, 88-89).
 2   ¶ 34 Eventually, Whitman agreed that for $ 10,000 he would help Arredondo
 3   manage    investors’ accounts,     handling their calls and sending them account
 4   statements. (Id., 91-94, 97-101). He sent several monthly statements to Seaver

 5   reflecting very large returns. (Id.). He calculated the value of investor accounts based

 6   on the returns stated in their agreements, and would call Arredondo to verify these

 7   numbers were correct before sending the statements. (Id., 97-101).
     ¶ 35 In February, 2002, two months after Seaver’s last investment, Whitman still
 8
     believed that Arredondo was making the kind of money that he was representing to
 9
     investors. (Id., 96). Accordingly , Whitman signed a new agreement, rolling over his
10
     initial personal investment. (Id., 96). Whitman believed Arredondo’s program was
11
     successful, in part, because Arredondo told him about “fast-growing start-up
12
     companies” he invested in, such as the U.S. Bodyguard Association. (Id.).
13
     ¶ 36   Mark Sinkinson also testified about his investment losses. (RT 7-11-06 20-64).
14
      He had absolutely no connection to Seaver as Sinkinson’s investments with
15
     Arredondo ended in January, 2001, two months before Seaver’s first investment. (Id.,
16
     49-50) Upon Sinkinson’s request, Randall provided Sinkinson with a statement
17
     reflecting the trust’s value at over $ 3.147 million. (Id., 26, 34). Sinkinson then
18
     entered a series of approximately twelve successive investment agreements. (Id., 27-
19   29, Ex. 120).
20   ¶ 37     As his investments grew, Sinkinson wanted assurances that the Trust was
21   earmarked for his investments only. (Id., 26-27, 41-42). Randall complied, sending
22   him two letters (which Randall testified were authentic) (RT 7-6-06, 56), indicating
23   that the $ 3.2 million Trust was earmarked for Sinkinson, would remain
24   unencumbered, and that Randall’s review of the Trust documents led him to conclude
25   they validly secured Sinkinson’s investment. (Ex. 25, 26, RT 7-11-06, 42-43).
26   Sinkinson also testified in rather vivid detail about how in his last transaction,
27   Arredondo deviated from their normal payment procedures, promised to deposit a
28                                             12
 1   check in Sinkinson’s account, and then stopped payment on that check. (Id., 50).
 2   After that, Arredondo would not accept his calls. (Id., 51).
 3   ¶ 38   Two additional witnesses testified about Arredondo’s purchases of luxury items
 4   in December, 2001, soon after Seaver’s investment. Over Defendant’s hearsay

 5   objection, the court admitted testimony from Ted Rhodes relating to documents

 6   purporting to reflect two sales to Arredondo, for $ 34,580, on December 7, 2001, for

 7   jewelery. (RT 6-30-06, 5-14). A Lamborghini dealer explained that Arredondo
     purchased a Ferrari with a $ 145,000 wire transfer on December 4, 2001. (RT 7-6-
 8
     2006, 90-92).
 9
                                     ARGUMENT ONE
10
            Defendant was denied his right to retained counsel of choice where the
11          court required him to proceed to trial represented by an attorney he did
            not trust, with whom he had an actual conflict of interest, where
12          Defendant had no input into his defense, and where all prior
            continuances were the result of the protracted medical leaves of
13          appointed trial counsel, the unethical practices of previous retained
            counsel, and of the attorneys’ trial schedules.
14
     A. Standard Of Review
15
     ¶ 39 The Arizona Courts of Appeal reviews the trial court’s interpretation of a
16
     constitutional right de novo as an issue of law. State v. Aragon, 221 Ariz 88, 90, 210
17
     P.3d 1259, 1261 (2009).
18
     B. Applicable Law
19   ¶ 40   A Defendant’s right to retained counsel of choice has long been regarded as the
20   root meaning of the Sixth Amendment’s Right To Counsel.              United States v.
21   Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct.. 2557, 2562, 165 L.Ed.2d 409 (2006).
22   That right is not derived from the right to a fair trial but from the Sixth Amendment’s
23   Counsel Clause. Id. Since the issue is not whether Defendant received a fair trial as
24   a result of his trial attorney’s preparation and performance, but rather whether
25   Defendant’s right was honored allowing him to be represented by his chosen retained
26   counsel, the erroneous deprivation of that right “unquestionably qualifies as structural
27   error,” requiring no showing of prejudice. Aragon, 210 P.3d at 1262, citing Gonzalez-
28                                             13
 1   Lopez, supra 50.
 2   ¶ 41 In Aragon, this Court evaluated the very issue presented here: whether denial
 3   of a requested trial continuance, to allow Defendant to replace his appointed counsel
 4   with his chosen retained counsel, was erroneous. Aragon determined that the court’s

 5   denial deprived Defendant of his right to chosen retained counsel, which constituted

 6   structural error, requiring reversal. Aragon, supra 1262. Aragon acknowledged that

 7   courts have a “wide latitude in balancing the right to counsel of choice against the
     needs of fairness and against the demands of its calendar.” Id., 1262, citing Gonzalez-
 8
     Lopez, supra 152. Whether or not a violation occurs “depends on the circumstances
 9
     present in the particular case.” Aragon, supra 1261. In denying representation by
10
     chosen counsel, “the onus is on the court to create a record of its reasons for the
11
     denial.” Id., 1262, fn. 3. Where the court arbitrarily insists “upon expeditiousness
12
     in the face of a justifiable request for delay,” it violates Defendant’s right to counsel
13
     of choice. Aragon, supra 1261, citing Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct.
14
     1610, 75 L.Ed. 2d 610 (1983).
15
     C.         Legal Analysis
16
     ¶ 42 Here, the court did not satisfy “the onus” of “creat[ing] a record of its reasons
17
     for the denial,” and “in the face of a justifiable request for delay,” it insisted upon
18
     expeditiousness. Id. While, it explained that it had “given consideration to all of the
19   factors that have been listed in the cases,” and listed those factors,5 the court did not
20   explain how it applied those factors to this case. However, immediately before
21   announcing its decision, the court provided insight into the specific factors which
22   influenced its decision. The court stated: “[w]hat concerns me here . . . is the fact that
23   I’m quite confident that Mr. Brault is prepared to go to trial, that he is competent,
24
25          5
              The factors identified by the court “includ[e] the conflict that was alleged to have existed,
26   the timing of the motion, the inconvenience to witnesses, the time period that’s already elapsed
     between the original offense and the trial, the number of changes of counsel that have already
27   occurred, the fact that competent counsel is prepared to go, the complexity of the case.”

28                                                     14
 1   that there is no doubt about that . . .[a]nd I do have some concerns about the timing,
 2   and I’m not attributing motives to counsel in any way, but I’ve got some concern about
 3   the timing here.” (RT 6-20-06, 29)(emphasis added). The Court stated it did not
 4   understand why local counsel had not been hired earlier. (Id., p. 22). It also specified

 5   a third factor: that all prior continuances had been filed for Defendant’s benefit. (RT

 6   6-15-06, 14-15, RT 6-20-06, 14-16).

 7   ¶ 43 In basing its decision on counsel’s competence and preparedness, the court
     relied upon an improper consideration under Aragon:
 8
            However, in the present case, a finding that there was no error based on
 9          the fact Aragon had other competent counsel prepared to try the case
            would be inconsistent with Gonzalez-Lopez’s holding that “it is
10          unnecessary to conduct an ineffectiveness or prejudice inquiry to
            establish a Sixth Amendment violation”...
11
     Aragon, 1261-62, citing Gonzalez-Lopez, supra, 148 (emphasis added). Aragon
12
     specifically acknowledged that Gonzalez-Lopez’s conclusion about competence of
13
     counsel related only to its determination that such error is structural. Aragon, supra
14
     1262, citing Gonzalez-Lopez, 548 U.S. 148. However, Aragon applied Gonzalez-
15
     Lopez in a broader context. It concluded that a trial court’s reliance on present
16
     counsel’s competency and preparedness, in denying Defendant’s requested
17
     substitution, is inconsistent with Gonzalez-Lopez’s holding. Aragon, supra at 1262.
18
     ¶ 44   The court’s second expressly-stated reason for denying Defendant’s motion was
19   its “timing” (RT 6-20-06, 29). More specifically, the Court questioned why Defendant
20   was unable able to raise funds to hire local counsel until early June (RT 6-20-06, 22).
21   The court’s consideration of Defendant’s financial inability to retain counsel earlier
22   was also improper under Aragon.
23   ¶ 45 In Aragon, the reason for Defendant’s delay in substituting counsel was
24   identical to Arredondo’s reasons. While Defendant had been in touch with his
25   retained counsel for months, he had not previously requested substitution because he
26   “didn’t have funds to hire him” until he filed the continuance request less than one
27   week prior to trial. Argaon, supra at 1260-61. Aragon found that was a legitimate
28                                             15
 1    reason for delay and should not have precluded a continuance. Id. The same was true
 2    here.       The record was clear that the reason for Defendant’s delay in seeking
 3    substitution was that Defendant first lacked funds to hire Richards (hired in January,
 4    2006), and then lacked the additional funds to pay Sigal’s retainer. Moreover, the

 5    reason Defendant lacked those funds were valid: (1) Defendant had already paid

 6    Cordova somewhere between $ 35,000 and $ 65,000 6; (2) Defendant had been

 7    incarcerated for three and one half months in Arizona, and thus had no income for
      several months (4-15-04 through 7- 26-04, ROA # 44, 81); and (3) Defendant’s ability
 8
      to pay local counsel his substantial retainer was hampered by having paid Richards a
 9
      very large retainer. Moreover, both Richards and Sigal personally affirmed that their
10
      only contacts with Defendant, since approximately April, 2006, all related to problems
11
      Defendant encountered in raising funds to retain Sigal. (RT, 6-20-06, 26-28). Brault
12
      also confirmed that Sigal had contacted him months before June, to advise of
13
      Defendant’s attempt to retain him. (RT 6- 20-06 in camera, 16-17). Under Aragon,
14
      the reason for the delay could not support the court’s denial of defendant’s motion.
15
      ¶ 46 Beyond the similarity for the reasons for the delay, the reason why Defendant
16
      in Aragon sought prior counsel, which the Court considered “legitimate” is remarkably
17
      similar to Arredondo’s reasons.         Aragon had retained new counsel due to “a
18
      communication issue” with appointed counsel.             Id. This Court noted that this
19    “communication issue” constituted a “legitimate reason” for Defendant’s requested
20    continuance and substitution. See id.
21    ¶ 47 Similarly, here, there is a         lengthy record relating to the communication
22    problems between Arredondo and Brault.              Defendant emphasized the lack of
23    continuity in communication resulting from Brault’s lengthy medical absences from
24
              6
25             The retainer agreement acknowledged that Defendant had paid $ 25,000 of the $ 50,000
     retainer fee and at least $ 10,000 of the $ 15,000 fee for local counsel and Cordova’s travel
26   expenses. (ROA # 164, Exhibit Two). Moreover, the agreement provided that an additional
     $30,000 was due by January 25, 2005. Since Cordova was counsel until April 11, 2005,
27   presumably, Defendant had paid at least a portion of the total $ 30,000.
28                                                 16
 1   work. Brault confirmed he had not worked (and hence not communicated with
 2   Arredondo) at least during his first four-month medical leave. Brault’s absences and
 3   admitted unpreparedness on February 17 (just 1 ½ months prior to the 4/4/06 trial
 4   date), and the resulting “discontinuity” in communication, gave rise to what must be

 5   an over-riding concern for this Court: that lacking discussions with Brault about his

 6   case, Defendant had no input into his defense. In fact, Brault confirmed that he had not

 7   had substantive communications with Defendant. (RT 6-20-06 en camera, 11).
     ¶ 48    Just as important as the discontinuity in communications was the nature of those
 8
     communications and of their relationship. Arredondo explained their “abrasive,
 9
     adversarial” relationship, his mistrust of Brault and their conflict of interest.
10
     Moreover, the case history reflected objectively valid reasons for Arredondo’s lack
11
     of trust.
12
     ¶ 49    Since Brault had represented, in Defendant’s presence, that during his upcoming
13
     four-month leave, there was a “high likelihood” he would be working on the case,
14
     (RT 6-1-05, 6) Defendant had a legitimate reason to lose trust and confidence when,
15
     in February, 2006 Brault returned to report he had not worked on the case during his
16
     four-month absence. That concern was justifiably enhanced when Brault took another
17
     leave for a medical procedure just two months later.
18
     ¶ 50 Moreover, Defendant’s lack of confidence that Brault could handle such a
19   complex, large-disclosure case was, in fact, confirmed when Brault himself admitted,
20   that over nine months after his appointment, and 1½ months before trial, that he had
21   just begun to realize that he had “underestimated the amount of work . . .involved with
22   getting a trial of this magnitude,” and overestimated how much work Cordova had
23   done.
24   ¶ 51 Moreover, Defendant had another very good reason for his mistrust: Brault’s
25   mistake had caused the State’s motion to revoke Arredondo liberty, causing him
26   justifiable concern for his imminent arrest.       Brault’s stated attitude that this
27   “procedural” error by his staff was a “non-issue” because it had ultimately been
28                                              17
 1   “cleanly resolved” (Id., 10) exemplified an insensitivity to issues which would cause
 2   any Defendant concern and would justifiably exacerbate Defendant’s mistrust of
 3   Brault.
 4   ¶ 52 Another reason for Defendant’s mistrust is so significant that it could be

 5   considered dispositive, in-and-of-itself, in establishing that the court erred. Through

 6   the hearings on Defendant’s motion, an irreconcilable conflict of interest became

 7   transparent. Even after hearing Arredondo’s strong statement outlining his complete
     dis-trust of Brault, Brault still refused to request withdrawal. As his attorney, and as
 8
     required by A.R.S. 11-587, Brault was required to zealously advocate for
 9
     Defendant’s stated desire for him to withdraw. Brault’s reliance on Rule 6.3's
10
     prohibition was unjustified because it conflicted with Defendant’s Sixth Amendment
11
     right to counsel. In discussing Rule 6.3, Aragon held that “we will not ‘elevat[e a]
12
     technical requirement above [Aragon']s right to counsel of his choice .” Aragon,
13
     supra at 91, citing State v. Coghill, 216 Ariz. 578, 169 P.3d 942, 953 (App.2007).
14
     ¶ 43 In fact, after Brault heard Arredondo’s statement expressing his distrust and
15
     how he had no input into his defense, the Court asked Brault if he had any problem in
16
     representing Arredondo. Incredibly, Brault responded he had none. (6-20-06, 10).
17
     This was an egregious example of an attorney acting directly contrary to his client’s
18
     clearly-stated (and justifiable) wishes. Brault’s failure to advocate for his client, in
19   view of all of the problems Arredondo described in their relationship created an actual
20   conflict of interest. By forcing Defendant to trial with an attorney with whom he had
21   an actual and substantial conflict of interest, the court clearly erred.
22   ¶ 54      Thus, Defendant’s reason for retaining counsel and for the delay in doing so
23   were virtually identical to the reasons in Aragon, where the court determined that the
24   denial of Defendant’s motion constituted structural error.
25   ¶ 55 The court’s failure to meet its “onus” of justifying the reasons for its decision
26   is also illustrated by its factually incorrect analysis of the case history. The court
27   erred in concluding that Defendant had been the beneficiary of all prior continuances.
28                                              18
 1   The first requested continuance was a joint motion due to the trial calendars of both
 2   lawyers and because neither lawyer would be ready by December 7, 2004. (RA 90,
 3   RT 11-15-04, 6). While the motion to continue may have benefitted Defendant’s
 4   prior lawyer, since he left Defendant high and dry when withdrawing for unethical

 5   reasons, and because the motion was jointly filed for the benefit of both attorneys’ trial

 6   calendars, Defendant was clearly not the beneficiary of this motion.

 7   ¶ 56   It was the State which had requested a continuance of the second trial setting.
     While that Motion To Continue came in the wake of Cordova’s withdrawal, the
 8
     papers clearly stated that the prosecutor was requesting the continuance because he
 9
     would be in a complex trial. (ROA # 108). Moreover, the fact that Cordova
10
     withdrew based an unethical clause in his retainer agreement, cannot be fairly
11
     construed against Defendant. The Rules of Professional Conduct clearly provide that:
12
            . . . [A] lawyer shall abide by a client’s decisions concerning the
13          objectives of representation . . In a criminal case the lawyer shall abide
            by the client’s decision after consultation with the lawyer , as to a plea
14          to be entered . .
15   Ariz.R.Prof.Con. ER 1.2(a). A retainer clause which authorizes withdrawal if the
16   client does not agree with any attorney advice, without limitation, is in clear

17   contravention of this ethical rule. Clearly, a lawyer who withdraws because he does

18   not agree with a decision that always rests with the Defendant, violates this rule. Id.

19   A continuance resulting from such unethical practices surely cannot be considered for
     the Defendant’s benefit.
20
     ¶ 57 Finally, the third and last motion to continue, prior to Richards’ motion, was
21
     based upon Brault’s medical situations. It defies logic to conclude, as the court did,
22
     that this requested continuance was for Defendant’s benefit. While that error probably
23
     resulted from Judge Fields’ unfamiliarity with the case history, it nevertheless was a
24
     mistaken analysis which was an expressly-stated factor in his decision.
25
     ¶ 58     Aragon addressed other factors for the court to consider. One factor is the
26
     proximity to trial of Defendant’s requested continuance. Aragon, supra 1262.
27
28                                              19
 1   Aragon concluded that no authority supported the court’s apparent belief that a
 2   continuance request made five to six days before trial “is inherently unreasonable.”
 3   Id. Here, Richards notified the State of his intent to substitute 20 days prior to trial,
 4   and the court heard Defendant’s motion two weeks prior to trial. Thus, under Aragon,

 5   the timing of the request is not “inherently reasonable,”and cannot constitute a factor

 6   weighing against Defendant’s request. Id., 1262.

 7   ¶ 59 Another Aragon factor is the number of continuances previously sought.
     Aragon, supra 1261. One of the factors Aragon cited in concluding that the trial
 8
     court’s denial was erroneous was that it was Defendant’s first request to continue in
 9
     a simple DUI case. Id. However, the number of continuances previously requested
10
     is just one among a constellation of factors, and has never been held to be the
11
     dispositive factor. Id. For instance, Aragon noted that Miller held that the court did
12
     not err by compelling Defendants to proceed with appointed counsel where the trial
13
     had already been postponed twice. Aragon, supra at 1261, citing State v. Miller, 111
14
     Ariz. 321, 322, 529 P.2d 220, 221 (1974). However, of critical significance is that
15
     Aragon emphasized that in Miller, the Supreme Court had relied on the fact that the
16
     continuance had not been requested until after the jury was empaneled. Id.
17
     ¶ 60     Moreover, Aragon directs courts to consider the complexity of the case.
18   While the denial, in a simple DUI case, of the first requested continuance made five
19   days prior to trial constituted error in Aragon, that cannot mean that denial of a fourth
20   continuance request in a complex white collar fraud case argued two weeks before
21   trial cannot constitute error. While one or two continuances in a simple DUI case may
22   be the norm, four or five continuances may be the norm in a complex investment fraud
23   case. More importantly, because the continuances were purely the result of the
24   attorneys’ respective personal circumstances, and not for Defendant’s benefit, the
25   number of continuances here should play a much less important role in the analysis.
26   ¶ 61 Another Aragon factor is whether the proposed continuance caused
27   inconvenience to the witnesses, counsel and litigants. Aragon, supra. When listing

28                                              20
 1   the factors he considered in denying the motion, Judge Fields said nothing about any
 2   inconvenience to these parties. Significantly, the State said nothing about
 3   inconvenience to the prosecutor. Moreover, the brief record that was made as to
 4   witness inconvenience cannot support the court’s denial. When the court asked the

 5   prosecutor if he had asked the witnesses about the inconvenience a continuance might

 6   cause, the prosecutor replied he had not made that inquiry, explaining: “. . . we have

 7   not been in contact with them, because we didn’t know when we would be continued
     until.” (RT 6/20, 28). At the prior June 15, 2005 hearing, the State explained that it
 8
     had purchased plane tickets for the out-of-state witnesses. (RT 6-15-06, 5 ).
 9
     However, Richards offered to reimburse the State for the cost of those tickets. (Id.,
10
     20). The court then specifically asked the prosecutor to respond to Richards’ offer.
11
     (Id.). The State simply argued that the offer did not alter its position for a number of
12
     reasons, none of which involved the inconvenience to the witnesses or counsel. Id.
13
     ¶ 62 Throughout the motion hearings, the State argued against substitution of
14
     counsel. It argued vehemently that § 11-587 did not require Brault to file a withdrawal
15
     motion. Moreover, the court appeared to be heavily influenced by the State’s main
16
     two arguments: (1) that the timing of the motion suggested it was “tactical;” and (2)
17
     that Brault was competent and prepared. The State simply has no standing to argue
18   who should serve as Defendant’s counsel even where substitution may require a
19   continuance. In Madrid, the Court clearly stated:
20         It is understandable that the State should oppose the original motion for
           substitution and the resulting continuance, since it was prepared to try
21         the case on that date. But for the prosecution to participate in the
           selection or rejection of its opposing counsel is unseemly if for no other
22         reason than the distasteful impression which could be conveyed.
23   State v. Madrid, 105 Ariz. 534, 535, 468 P.2d 561, 562 (1970); also, Knapp v.
24   Hardy, 111 Ariz. at 107, 112, 523 P.2d 1308, 1313 (1974)(prosecutor is without
25   standing to object to issues concerning representation of indigent Defendant currently
26   represented by appointed counsel). By permitting the State to argue substitution, and
27   by being influenced by that argument, the court erred and allowed the State to

28                                             21
 1   irreparably interfere with Defendant’s right to counsel of choice.
 2   ¶ 63     Finally, another important factor under Aragon is the victim’s position. Supra,
 3   at 90.     While the victim here objected to the continuance, other factors mitigate
 4   against how much significance should be attributed to his position. The victim

 5   explained his objection:

 6            My name is Doug Seaver. I’m an architect here in this community, and
              been practicing over 30 years. I have postponed personal vacation times
 7            and events pertaining to travel with my family four times now over the
              years, because of the various changes of dates and time. And my
              appeal is to put this behind me and to be able to get on with life. And so,
 8            part of my request is that the continuance be denied, so that we can do
              exactly that.
 9
10   (RT 6-20-06, 17-18).        Notably, in listing the factors it considered in denying
11   Defendant’s motion, the court made no mention of the victim’s position. Accordingly,
12   since that was not one of the factors the court considered, that decision cannot be
13   justified, after the fact, as reasonable, based on that unconsidered factor.
14   r¶ 64 Significantly, the victim only raised one specific : his vacation plans had been
15   postponed. However, there was no claim that a proposed September trial date would
16   interfere with his plans. While the victim stated his general desire to put the case

17   behind him, it is indeed significant that this was a white collar financial crime with a

18   well-off, sophisticated investor victim, as opposed to an unsophisticated or vulnerable

19
     victim or victim of a violent crime.
     ¶ 65      Moreover, since he had already received a $ 12 million default judgment
20
     against Defendant, Seaver suffered no financial consequences as a result of a two-
21
     month continuance. Accordingly, while the victim’s opposition constitutes one factor
22
     weighing against a continuance, in view of all of the other factors, the victim’s position
23
     does not justify the court’s denial.
24
     ¶ 66 Where the choice is between the understandable desires of a successful
25
     architect-victim and a two-month continuance to allow Defendant to exercise his right
26
     to retained attorney of choice, where his appointed attorney’s personal circumstances
27
28                                                22
 1   did not allow Defendant to have any input into his defense or trust in his lawyer,
 2   Defendant’s fundamental Sixth Amendment right to chosen retained counsel must
 3   take precedence.
 4                                    ARGUMENT TWO

 5          The trial court abused its discretion in allowing the financial fraud
            investigator to apply his expertise to the facts of the case in providing his
 6          legal conclusion that Arredondo’s conduct constituted a Ponzi scheme.

 7   A.     Relevant Facts
     ¶ 67   Nearly the entire basis for Agent Johnson’s testimony were four bank record
 8
     summaries he created, (Exhibits 139-142) admitted over Defendant's continuing
 9
     objections to foundation, and pursuant to Rule 404(b) (RT 7-7-06,7-17). After
10
     Johnson    identified only a few specific transactions from these accounts, the
11
     prosecutor asked whether Johnson had "come to an opinion as to what Mr.
12
     Arredondo's operation was?" (Id., 20). Defendant objected, arguing that the question
13
     called for an "ultimate legal conclusion" and for testimony without proper foundation.
14
     The Court, apparently seeking to prevent Johnson from testifying to the legal
15
     conclusion that it was a Ponzi scheme, specifically asked the prosecutor whether that
16
     was the opinion he sought to elicit. The prosecutor emphatically denied that Johnson
17
     would provide such testimony:
18          No. No. This is, what he's going to talk about is primal banking. Giving
19
            [sic] we've got testimony, Medium Term Notes, Standby Letters of
            Credit, Discount Letters of Credit, what Mike Whitman talked about,
            which is this high rate of return, notes that have all this legend. And it's
20          really a primal bank scam that you just don't have access to it.
21   (Id., 21-22.). The Court ruled that "before he gives that opinion there is some
22   foundation that you’ve got to lay.” (Id.).
23   ¶ 68 After eliciting Johnson’s 26 years of training and experience (Id., 21-22), the
24   prosecutor again asked for his opinion. (Id., 22) Johnson immediately said it was a
25   Ponzi scheme. (Id., 22). Johnson also concluded that “he appeared to be offering
26   was what's referred to as a prime bank scheme or prime note bank scheme." (Id.)
27   (emphasis added). Johnson explained this as purchasing bank paper like a letter of

28                                                23
 1   credit, at less than face value and then reselling it at face value to make a very large
 2   profit. (Id., 22-23). Johnson explained that banks “don’t do this.” (Id., 23). Even
 3   though he had previously disavowed any intent to have Johnson conclude that
 4   Arredondo’s conduct constituted a "Ponzi scheme," the prosecutor asked Johnson to

 5   explain a Ponzi scheme. (Id., 24). Johnson explained how Charles Ponzi’s criminal

 6   scheme solicited investments, based on his claim to an inside track to high-yield

 7   investments, when Ponzi never invested the money, but merely paid off old investors
     with new investors' money.
 8
     B.     Standard of Review
 9
     ¶ 69 The admissibility of expert testimony is within the sound discretion of the trial
10
     court and will not be overturned on appeal absent an abuse of discretion. Webb v.
11
     Omni Block, Inc., 216 Ariz. 349, 352, 166 P.3d 140 (App. 2007).
12
     C.     Legal Principles
13
     ¶ 70    Rule 704, Arizona Rules of Evidence provides, that expert "[t]estimony in the
14
     form of an opinion or inference otherwise admissible is not objectionable because it
15
     embraces an ultimate issue to be decided by the trier of fact." However, the Comments
16
     make it clear that the Rule clearly does not allow experts to state opinions as to legal
17
     conclusions:
18          Some opinions on ultimate issues will be rejected as failing to meet the
19
            requirement that they assist the trier of fact to understand the evidence or
            to determine a fact in issue. Witnesses are not permitted as experts on
            how juries should decide cases.
20
21   Comment to Rule 704, Ariz.R.Evid.
22   ¶ 71 Our courts have concluded that while expert opinions touching upon ultimate
23   issues are not per se disallowed by the rules , such opinions cannot be couched in legal
24   conclusions:
25          Rule 704 was enacted to abolish the common law ultimate issue rule,
            which prevented opinion testimony that embraced an ultimate issue that
26          was to be decided by the trier of fact. But, while Rule 704 makes such
            opinion testimony admissible, it does not do so without limit. As
27          indicated by the comment to Rule 704, opinion testimony on an ultimate

28                                              24
 1         issue must still be helpful to the trier of fact and cannot be couched in
           legal conclusions that simply opine “how juries should decide cases.”
 2         Thus, our inquiry is whether [the expert's] testimony constituted an
           impermissible legal conclusion.
 3
     Webb, supra at 353. Thus, Webb reversed and remanded because the expert opinion
 4
     constituted the expert's belief as to how the case should be decided, and constituted an
 5
     impermissible legal conclusion:
 6
           Undoubtedly some highly opinionated statements by the witness amount
 7         to nothing more than an expression of his general belief as to how the
           case should be decided or the amount of damages which would be just.
           All courts exclude such extreme, conclusory expressions. There is no
 8         necessity for this kind of evidence; its receipt would suggest that the
           judge and jury may shift responsibility for the decision to the witness. In
 9         any event, the opinion is worthless to the trier of fact.
10   Webb, supra at 354, citing 1 McCormick on Evidence § 12, at 60 (6th Ed.1999)
11   (footnote omitted).
12   ¶ 72 Arizona's Supreme Court echoed Webb’s concerns. It declared in Lindsey:
13         However, the expert's function is to provide testimony on subjects that
           are beyond the common sense, experience and education of the average
14         juror. . . It is not the expert's function, however, to substitute himself or
           herself for the jury and advise them with regard to the ultimate
15         disposition of the case.
16   State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) (child molestation

17   conviction reversed where expert went beyond explaining general behavioral patterns

18   of child victims, drawing conclusions about the frequency of victims lying and

19
     whether child victim appeared consistent with molestation victims). Moreover,
     Lindsey concluded that where the expert testifies in generalities about his expertise
20
     in areas where jurors otherwise lack knowledge, such testimony is proper. Id., 474.
21
     However, where the expert applies his specialized knowledge to the facts of the
22
     specific case, such conclusory testimony is improper. Id., 474-75.
23
     D.    Legal Analysis
24
     ¶ 73 This is precisely what happened in this case. Johnson’s testimony that certain
25
     banks simply don’t engage in selling certain financial instruments is proper under the
26
     principles of Lindsey and Webb because the average juror is not knowledgeable about
27
28                                              25
 1   such instruments and such testimony does not invade the jury’s province. However,
 2   Johnson’s testimony went much further. He specifically applied his specialized
 3   knowledge to the facts of this case. By stating his opinion that Defendant was engaged
 4   in Ponzi and primal banking schemes, Johnson applied his expertise to the facts of this

 5   case, and thereby "substitut[ed] himself . . . for the jury and advise[d] them with regard

 6   to the ultimate disposition of the case," as prohibited by Lindsey, id., 76.

 7   ¶ 74 Moreover, Johnson's testimony was improper because it was couched in terms
     of the statute’s specific terms. In Scop, a case upon which Webb relied , the Second
 8
     Circuit, addressed that very issue. In determining that the court erred in admitting
 9
     expert testimony, the Second Circuit stressed that the expert "made no attempt to
10
     couch the opinion testimony at issue in even conclusory factual statements but drew
11
     directly upon the language of the statute and accompanying regulations concerning
12
     'manipulation' and 'fraud.'” United States v. Scop, 846 F.2d 135, 140 (2d Cir.1988),
13
     cited by Webb, supra, 354. Scop emphasized that the expert’s “opinions were legal
14
     conclusions that were highly prejudicial" and which "invade[d] the province of the
15
     court to determine the applicable law and to instruct the jury as to that law.” Id.
16
     ¶ 75 Here, the court erred by admitting Johnson’s testimony because, as in Scop,
17
     Johnson testified to legal conclusions using the language of the Fraudulent Schemes
18   And Artifices statute. First, Johnson’s legal conclusions were repeatedly couched in
19   the word “scheme,” derived directly from A.R.S. 13-2310.               In describing his
20   conclusions about “Arredondo’s operation,” Johnson used the term “scheme” seven
21   times over brief spans: three separate times over seven lines of transcript (RT 7-7-06,
22   22), and four more times over five lines of transcript. (Id., 24). Second, when
23   explaining Arredondo’s “operation” as a “prime bank scheme” or “prime note bank
24   scheme,” Johnson couched his legal conclusions in terms of the statute’s elements,
25   describing Arredondo’s operation as “fraud,” an element of the same statute. (Id., 23,
26   lines 22-24). By couching his legal conclusions in the specific terms of the statute,
27   Johnson “drew directly upon the language of the statute, and as a result, "his opinions

28                                              26
 1   were legal conclusions that were highly prejudicial.” Scop, supra 846 F.2d at 140.
 2   Accordingly, the court erred in admitting that testimony.
 3   ¶ 76 The prejudice suffered from Johnson’s Ponzi scheme conclusion was magnified
 4   because it was based upon a conclusion, he drew from his bank summaries, which was

 5   incorrect. Based on the summary exhibits he prepared, Johnson concluded that “that

 6   none of the moneys” in Arredondo’s Aspire bank account went into investments on

 7   behalf of his clients. (RT 7-7-06, 17). In fact that summary reflected that Johnson
     himself characterized certain outgoing transactions as venture capital for specified
 8
     companies (Ex 142). For instance, Exhibit 142 reflects the following entries: (1) $
 9
     30,000 on 11-3-01 to “Entertainment Direct TV (Venture Capital)”; (2) $ 38,000 on
10
     10-17-01 to “Stonebreaker Sculpters (Venture Capital/Moldings)”; (3) $ 8,500 on 10-
11
     16-01 to “Stonebreaker Sculpters (Venture Capital/Moldings)”; and (4) $ 10,000 on
12
     7/5/01 to “Start Up Capital.”
13
     ¶ 77    Much more significantly, Exhibit 142 also reflects that of 277 total entries
14
     representing outbound transactions from the account, 109 of them went to the United
15
     States Bodyguard Association, to payroll for persons identified as employees of the
16
     company, or for capital expenditures on behalf of the company (Ex 142). At least two
17
     of the investor witnesses had testified that Arredondo had identified the bodyguard
18
     company as one of his venture capital investments to which he routed joint venture
19   monies. (RT 7-05-06, 96). In addition, a significant portion of outgoing funds were
20   large disbursements of cash to Arredondo, and there is no way of determining whether
21   those monies went into joint venture investments. Because Johnson’s Ponzi scheme
22   conclusion was based, in part, on that conclusion, the prejudice of allowing that
23   (Ponzi) legal conclusion is immeasurable.
24   ¶ 78 The exhibits were admitted over Defendant’s objection, even though Johnson
25   did not say how he determined whether the companies which received funds from the
26   Aspire account were companies into which Arredondo invested joint venture funds.
27   Similarly he did not explain how he distinguished between companies which deposited
28                                            27
 1   money to Randall’s account which were investor or non-investor companies. In other
 2   words, Johnson’s summary sheets and the conclusions drawn from them, were
 3   admitted over Defendant’s foundation objection, where the State laid no foundation
 4   for how Johnson’s investigation determined these critical facts. Accordingly, the trial

 5   court also erred by admitting the exhibits without proper foundation.

 6   ¶ 79   Johnson’s incorrect or misleading conclusions for which he provided no basis,

 7   along with his legal conclusion that this was a Ponzi scheme, was devestating to
     Defendant, particularly due to Johnson’s “expert” status. Incredibly, Brault asked not
 8
     a single question on cross-examination. (RT 7-5-06, 26).
 9
                                    ARGUMENT THREE
10
            The court erred in admitting other act evidence because it did not require
11          the state to specify the prior acts, their proper purpose, or to prove their
            commission by clear and convincing evidence, prior to admission, and as
12          a result, admitted extremely repetitive prejudical evidence.
13   A.     Relevant Facts
14   ¶ 80   While the State originally noticed 11 prior act witnesses, it honed that list down
15   to 5. (ROA # 130 ). At the May 11, 2006 motion hearing, the State argued that there
16   were two justifications for the witnesses: (1) to explain each witness’s “contact” with

17   Seaver; and (2) to explain their own failed investment experiences with Defendant.

18   (RT 5-11-06, 8-9). The State conceded that this second purpose was governed by

19   Rule 404(b). Midway through the hearing, the court observed:
            One of my concerns is what Mr. Brault raised, is I am not sure that I
20          know, for instance, I think I know that you intend to have all of these
            folks come in and say I invested money and I lost, is essential[ly] the
21          other-act evidence?”
22   Id. p. 21. The prosecutor explained that each investor would testify to the same
23   experiences:
24          I invested money, I got some money back, I think Mr. Wilson got his
            principal back. I was told these stories about why I wasn’t getting my
25          20% quarterly payments, and then at some point I could no longer
            contact Aaron Arredondo about where my money was. . .”
26
     Id. p. 22.   The Court expressed another concern:
27
28                                              28
 1          I am concerned about the piling-on effect as well, once we get past the
            foundational kinds of things, this is how they acted and these investments
 2          in general went, getting down to a fourth or fifth time saying that – that
            is my concern.
 3
     Id. p. 27.
 4
     ¶ 81 Brault argued that the State was required to identify the proper purpose under
 5   404(b) which justified admission, and that the Court needed to make a determination
 6   as to each act before its admission. (Id., 6-7, 30-31). When the court asked if he had
 7   “thought about” the purpose(s) through which he was seeking admission, the
 8   prosecutor responded: “I think we will find out at trial.” (Id., 31). As to Defendant’s
 9   request for a ruling, the Court stated that there “is not a definitive ruling I can issue at
10   this point” because the State had not outlined the proffered acts. (Id., 23, 29). The
11   State added that the court “won’t have that information until they testify . . [a]nd then
12   Mr. Brault will have to parse it.” Id.
13   B.     Standard Of Proof
14   ¶ 82      Usually, the standard of review as to admission of other act evidence is

15   whether the court abused its discretion. State v. Smyers, 205 Ariz. 479, 73 P.3d

16   610 (2003), reversed on other grounds, citing State v. Roscoe, 184 Ariz. 484, 491,

17
     910 P.2d 635, 642, cert denied, 519 U.S.854, 117 S.Ct. 150, 136 L.Ed.2d 96
     (1996).
18
     C.     Legal Principles
19
     ¶ 83 Evidence of “other crimes, wrongs, or acts” is inadmissible “to prove the
20
     character of a person in order to show action in conformity therewith,” Ariz. R.Evid.
21
     Rule 404(b). However, such evidence is admissible “for other purposes, such as proof
22
     of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
23
     mistake or accident.” Id. Prior to introducing prior act evidence, the proffering party
24
     must satisfy four evidentiary provisions. State v. Nordstrom, 200 Ariz. 229, 248, 25
25
     P.3d 717, 736 (2001). Rule 404(b) requires a proper purpose for admission. Id. Rule
26
     402 requires the evidence is relevant. Id. Rule 403 requires the danger of unfair
27
28                                               29
 1   prejudice does not outweigh the probative value. Id. Rule 105 requires that the judge
 2   give an appropriate instruction upon request. Id. Finally, “before admitting evidence

 3   of prior acts, trial judges must find that there is clear and convincing proof both as to

 4   the commission of the prior bad act and that the Defendant committed the act.” Id.

 5   citing State v. Terrazas, supra, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997).
     ¶ 84   Most significantly, our Supreme Court, rejected the U.S. Supreme Court’s non-
 6
     constitutional formulation of the parallel federal rule in Huddleston v. United States,
 7
     485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Based upon Rule 104(b)
 8
     Fed.R.Evid., the Huddleston court allowed a court to admit prior act evidence
 9
     contingent upon fulfillment of a condition of fact, subject to the later introduction of
10
     sufficient evidence to support a finding of such fulfillment. Terrazas, supra at 582,
11
     citing Huddleston, 485 U.S. at 689-91. Terrazas rejected Huddleston’s formulation
12
     in favor of requiring “clear and convincing” proof “to take the case to a jury.”
13
     Terrazas, supra at 582. Terrazas thus rejected Huddleston’s determination that the
14
     court could conditionally submit prior act evidence to the jury, without having ruled
15
     on it prior to admission. See id., 582, 584. Terrazas concluded that “before
16   admitting evidence of prior bad acts,” the proffering party must establish the prior
17   act by clear and convincing evidence. Id., 584 (emphasis added).
18   D.     Legal Analysis
19   ¶ 85   The Court abused its discretion by not requiring the State to identify each prior
20   act which it was proffering, as demanded by Defendant, by failing to specify its proper
21   purpose under 404 (b), and by failing to require the State to satisfy its “clear and
22   convincing burden prior to admission, justifying admission. See Terrazas, supra, 582,
23   584. At the hearing, the State made a general proffer about the prospective testimony
24   of each of the four prior act witnesses. (RT 5-11-06, 3-5, 8-9, 20-22) It did not even
25   mention the vast majority of prior acts which it introduced at trial. Notice of prior acts

26   is required to allow the other party to respond and to allow the judge to make the four

27   findings required by Nordstrom prior to admission. See Nordstrom, supra, 248. Here,

28                                              30
 1   because the court failed to require the State to identify the prior acts        it was
 2   proffering,its proper purpose or to meet its burden of proof under Terrazas, the court

 3   admitted several unduly prejudicial prior acts which the State had never previously

 4   mentioned, which had little probative value or proper purpose, and sometimes lacked

 5   relevance.
     ¶ 86   Perhaps the clearest and most prejudicial example was Randall’s testimony that
 6
     his guilty plea required him to pay Seaver and a list of several other investors,
 7
     including four whom the prosecutor specifically identified. Especially to jurors’
 8
     untrained legal minds, this was tantamount to evidence that Randall pleaded guilty with
 9
     respect to each of those investors. A non-lawyer would wonder: “how else could his
10
     guilty plea require him to pay others if he didn’t admit his guilt as to them?” The
11
     evidence was not material as to Randall’s specific conduct, only to an inferred legal
12
     conclusion of guilt with respect to these other investors. Accordingly it had no
13
     relevance or proper purpose under Rule 404 (b).         The prejudice was extremely
14
     substantial precisely because the only reasonable inference a juror could draw was
15
     that since Randall apparently pleaded guilty as to those investors, Arredondo must also
16   be guilty as to them. Since there was no proper purpose and no relevance, and since
17   the prejudice substantially outweighed the non-existent probative value, admission
18   violated Rules 402, 403, and 404(b), see Nordstrom, id.
19   ¶ 87   Another extremely prejudicial prior act that was neither proffered nor ruled on
20   prior to admission was Sinkinson’s testimony about the specifics of his last contact
21   with Arredondo. Sinkinon testified in detail about Arredondo’s promise to deposit the
22   check , Arredondo’s stopping payment, and Arrdeondo’s not accepting Sinkinson’s
23   calls after that incident. The testimony was incredibly prejudicial because it provided
24   jurors with a host of vivid details unique to Sinkinson which painted Arredondo’s
25   character in the worst possible manner, inviting them to draw a conclusion based on

26   his bad character. While the fact of Sinkinson’s loss of monies to Arredondo may

27   have had some probative value, the specifics as to how Arredondo promised to deposit

28                                             31
 1   the check, then stopped payment, and stopped taking calls, had much less probative
 2   value, particularly since Sinkinson was the only investor who had this experience. The
 3   substantial prejudice could have been avoided, and any evidence of probative value
 4   could have been admitted by Sinkinson testifying more generally about his investment

 5   and losses.

 6   ¶ 88 Finally, by not requiring the government, prior to admission, to specify the

 7   particular prior acts it was proffering, the court admitted exhibits and testimony,
     through Singh, Wilson, and Whitman which bootstrapped prior acts purportedly
 8
     committed against at least 25 other investors. Over Defendant’s 404(b) objection, the
 9
     court admitted Exhibit 67, as well as Exhibits 37 and 84, including testimony about
10
     them and other investors, regarding attempts to collect monies owed to at least 25
11
     other prior investors.7       There was no evidence suggesting Arredondo made any
12
     similar mis-representations to any of them about what secured their investment or how
13
     he would invest their monies. Thus, the testimony about these 25 other purported
14
     “victims” was not even relevant, absent a showing of such mis-representations to
15
     them.
16
     ¶ 89 At the pre-trial hearing, the court had indicated its concern for prejudice – the
17
     “piling on effect” – from repetition a “fourth or fifth” time from different investors
18
     ( RT 5-11-06, 27). Instead, the Court admitted testimony and exhibits with repetition
19   from about at least 25 other investors, in addition to the four who testified. The only
20   possible effect that the evidence could have on the jury was to lead them to infer that
21   since Arredondo had purportedly swindled 29 other individuals (25 + 4), then he must
22   have also swindled the only alleged victim, Seaver, i.e., the purpose expressly
23   prohibited by 404 (b). In addition, the Court erred because the court did not require
24
             7
25           The three exhibits listed losses for the following investors: Taylor, Leslie, Lovelace,
     Shahawi, Breamer, Walsh, Baston, Matsumoto, Homes, Lacson, D. Yaroborough, Jen Redlin, J.
26   Yarbborough, Esamali, Basile, Childers, Fell, Williamson, Grren, Miller, Kreitzberg, HMS
     Canada, Utz. In addition, to these investors, the four witnesses also testified about many of the
27   above investors, including but not limited to: D. Singh and Sharma, totaling 25. (Ex. 37, 67, 84).
28                                                   32
 1   the State to specify, nor did it specify, prior to admission, any proper purpose for
 2   admission under Rule 404 (b).
 3   ¶ 90 Perhaps the most serious error the court committed with respect to these other
 4   investors was admitting the evidence without requiring, prior to trial, clear and

 5   convincing evidence that Arredondo had committed these acts against this multitude

 6   of investors, as required by Terrazas, supra, Nordstrom, supra at 248. Without any

 7   evidence about the representations made to these investors, the State could not even
     prove these acts by a preponderance standard.
 8
     ¶ 91   Perhaps the most prejudicial and least probative evidence which resulted from
 9
     the court’s failure to require the State to prove the prior acts by clear and convincing
10
     evidence, was admission of Exhibit 67, and the testimony explaining it. It was a letter
11
     and attached spreadsheet from Wilson to Arredondo listing and discussing monies
12
     owed to 12 other investors. (RT 6-30-06, 37, Ex. 67) . The exhibit and testimony was
13
     admitted over Defendant’s 404(b), and hearsay objections. Defendant argued that
14
     admission of evidence of the investors listed in the exhibit had no proper purpose and
15
     was beyond the scope of prior acts which the State had indicated it would offer. (Id.,
16
     38-39). Defendant’s specific hearsay objection was that the exhibit was the product
17
     of what other investors had told Wilson. (Id.). In fact, the letter contained express
18
     hearsay statements such as “I spoke with Lovelace today and he wants this pay out and
19   will likely roll thereafter. He asked that you make his payment as follows . . .” (Ex.
20   67).
21   ¶ 92 The court noted that “there’s some valid concern as to the issue of other acts
22   with all of the names with a set figure next to them.”            (RT 6-60-06, 156).
23   Consequently, the court precluded testimony related to the individual investors and
24   amounts they had invested, but allowed Wilson to testify as to the “total of what these
25   other folks may have been due.” (Id.).         Despite that ruling, the court admitted
26   precisely what it sought to precluded: individual investors listed next to the amount
27   owed by each, by admitting Exhibits 37, 67, and 84. Moreover, the prosecutor elicited
28                                             33
 1   testimony from Wilson, Singh and Whitman about specific other investors and their
 2   losses. The court over-ruled Defendant’s hearsay objection, noting that Wilson is

 3   “present, subject to cross-examination.” (Id.).

 4   ¶ 93   Wilson then testified that on behalf of all of these investors, “all of a sudden,

 5   I got myself a job where I was trying to get everybody paid” and that he had
     “hounded” Randall and Arredondo for payment for “these people,” and that ultimately,
 6
     that Randall and Arredondo made excuses or avoided his calls trying to collect on their
 7
     behalf. (Id., 36-40, 43-49). The extraordinary problem with Wilson’s testimony was
 8
     that it was false and could not have been established by Terrazas’ clear and convincing
 9
     standard, let alone any lesser standard. Wilson testified that in the letter written to
10
     Arredondo, he stated that $ 662,400 was owing to these other investors. The letter
11
     itself established that this was patently false. (Ex. 67). The letter listed both amounts
12
     owed and amounts already paid. (Id.). The letter clearly indicated that $662,400
13
     was the total which was owed prior to those payments having been made. Id. The
14
     total amounts already paid to each individual investor, as stated in the letter was $
15
     413,430. Id. Thus, the letter concluded that “$ 662,400 minus $ 413,430 is a balance
16   of $ 248,570.” Id. Thus, Wilson testified that over $ 660,000 was unpaid when, in
17   fact, the letter reflected that Arredondo had already paid close to two-thirds of that
18   amount. Brault conducted no cross-examination to expose this glaring falsehood. (RT
19   6-30-06, 168-175).
20   ¶ 94   Admission of this evidence violated Rule 403. Because the testimony about the
21   other investors’ losses was false, it had no probative value.         It was incredibly
22   prejudicial because it implied that Arredondo made no efforts to pay any returns when
23   in fact he paid nearly two thirds.
24   ¶ 95 Finally, the testimony from the “other act” witnesses was exacerbated in one
25   significant way. On no less than seven separate occasions, the prosecutor carefully

26   elicited from almost each of its investor witnesses, extremely repetitive and

27   substantially prejudicial testimony about Arredondo’s expensive suits, watches, cars,

28                                              34
 1   etc. (RT 6-30-06, 23, 33-34, RT, 7-5-06, 6-7, RT, 7-5-06, 77, 90, RT, 7-11, 23).
 2   There can be no logical inference that a person clad with expensive suits, and watches

 3   and driving expensive cars is more likely to commit fraud or theft than a person with

 4   cheap suits, watches and cars. To the extent that Arredondo’s appearance and tastes

 5   could be argued to be marginally relevant, they had precious little probative value
     when compared to its substantial prejudicial effect through repetition.
 6
     ¶ 96 The substantial prejudice of this testimony was compounded by the State’s
 7
     hammering at the same irrelevant theme in closing arguments. The prejudicial effect
 8
     of the prosecutor’s repetitive barrage about Arredondo’s appearance cannot be fully
 9
     understood until this Court reads each such instance. (RT 7-12-06, 5,18,19, 41, 42,
10
     46, 47).
11
                                    ARGUMENT FOUR
12
           The court violated Defendant’s right to confrontation and abused its
13         discretion by admitting the investigating agent’s hearsay testimony that
           an un-named person at a federal agency told him that “there was no
14         record” of the bank which was at the heart of the state’s case for fraud
           and theft where there was no showing of unavailability or prior
15         opportunity for cross-examination.

16   ¶ 97 The State asked Johnson questions relating to Arredondo’s purported

17
     misrepresentation of the Certificate issued by ITB. Brault lodged a hearsay objection
     when the prosecutor asked what Johnson had determined about ITB. (RT 7-7-06, 18).
18
     Brault explained the basis for Johnson’s conclusion was a simple conversation Johnson
19
     had with an unidentified person at the Office of the Comptroller of the Currency,
20
     Department of Treasury (hereafter “Comptroller’s Office”) , whom Brault was not
21
     allowed to interview. (Id.). At side-bar, the court ordered the State to “nail down”
22
     the information source before eliciting any testimony. (Id.). As Brault predicted,
23
     when asked about the source, Johnson explained that he had “contacted” an un-named
24
     person at the Comptroller’s Office. (Id.). Johnson explained that he had conducted
25
     no further investigation with respect to ITB. (Id., 19). The prosecutor then asked
26
     Johnson if he was able to find the bank. (Id.). Brault renewed his objection. After
27
28                                            35
 1   that objection was over-ruled, Johnson explained what he had learned: “[t]here was
 2   no record” of the bank. (Id.) Brault conducted absolutely no cross-examination of

 3   Johnson.

 4                                         HEARSAY

 5   A.     Standard Of Proof
     ¶ 98   While the Court reviews issues relating to the admissibility of hearsay for abuse
 6
     of discretion, it reviews Confrontation Clause issued de novo.           Bohsancurt v.
 7
     Eisenberg, 212 Ariz., 182, 184, 129 P.3d 471, 473 (App. 2006).
 8
     B.     Legal Analysis
 9
     ¶ 99 Rule 802, Ariz.R.Evid. prohibits admission of hearsay unless otherwise
10
     admissible under some applicable exception. Rule 802 Ariz.R.Evid. Hearsay is “a
11
     statement, other than one made by the declarant while testifying at trial . . offered in
12
     evidence to prove the truth of the matter asserted.” Rule 801 Ariz.R.Evid. There can
13
     be doubt that Johnson’s statement constituted inadmissible hearsay. Johnson testified
14
     about the statement of an un-named third person, the declarant. Clearly, the declarant’s
15
     statement, that “there was no record” of ITB, was offered to prove the truth of the
16   matter asserted.
17   ¶ 100 Neither the “business” exception, Rule 803(6), nor the “absence of record”
18   exception, Rule 803(7), applies because there was no showing that the information
19   satisfied the criteria of Rule 803(6) (a)-(e) and (7)(which incorporates the requirements
20   of subparagraph (6)). There was no showing of the following requirements: (1) the
21   information came in the form of a memorandum, report, record or data compilation;
22   (2) the source of the record was a person with first-hand knowledge acquired as part
23   of a regularly conducted business activity; (3) the record was made at or near the time
24   of the underlying event; (4) the record had been made and kept in the course of
25   regularly conducted business activity pursuant to a regular practice; (5) the record was

26   offered through the custodian or another person established as qualified; (6) or offered

27   in the form of a certified document. Rule 803(6)(a)-(e), Rule 807 Ariz.R.Evid. The

28                                              36
 1   evidence clearly constituted hearsay to which no exception applied.
 2                      CONFRONTATION CLAUSE VIOLATION

 3   A.    Applicable Law

 4   ¶101 In Crawford, the Supreme Court adopted an absolute rule that where

 5   “testimonial” evidence of a witness who does not appear at trial is involved, regardless
     of its reliability, the evidence is inadmissible unless two conditions are met: (1) the
 6
     declarant is unavailable; and (2) Defendant had a prior opportunity to cross-examine
 7
     him. Crawford v. Washington, 547 U.S. 36, 68, 124 S.Ct. 1354, 154 L.Ed.2d 177
 8
     (2004). Crawford described a “core class of ‘testimonial statements’” while “leav[ing]
 9
     for another day any effort to provide a comprehensive definition of ‘testimonial.’”Id.
10
     Ths “core class of ‘testimonial’ statements included:
11
           “ex parte in-court testimony or its functional equivalent - that is,
12         materials such as affidavits, custodial examinations, prior testimony that
           the Defendant was unable to cross-examine, or similar pretrial statements
13         that declarants would reasonably expect to be used prosecutorially,
           extrajudicial materials, such as affidavits, depositions, prior testimony,
14         or confessions, statements that were made under circumstances
           which would lead an objective witness reasonably to believe that the
15         statements would be available for use at a later trial,” . . . [and]
           [s]tatements taken by police officers in the course of interrogations.
16   ¶ 102 Our courts have concluded that “a primary factor in determining if a statement
17   is testimonial is whether “a reasonable person in the position of the declarant would
18   objectively foresee that his statement might be used in the investigation or prosecution
19   of a crime.” State v. King, 212 Ariz. 372, 377, 132 P.3d 311, 316 (App, 2006)
20   (emphasis added). King explained why “the reasonable expectation of the declarant”
21   was the “key aspect” of the “common nucleus” of other jurisdictions’ formulations of
22   “testimonial,” which it too adopted:
23         It is the reasonable expectation that a statement may be later used at trial
           that distinguishes the flippant remark, proffered to a casual acquaintance,
24         from the true testimonial statement.
25   King, supra, 376. Moreover, this Court has concluded that “the historical concern”

26   which the Confrontation Clause was meant to protect “centered on statements taken

27   by officials who were prosecuting or investigating criminal matters . . .” Bohsancurt,

28                                             37
 1   supra, 212 Ariz. 189 (emphasis in original).
 2   B.     Legal Analysis

 3   ¶103 Here, it is undisputed that Johnson took a statement from an unidentified person

 4   in the course of investigating this criminal case. In contacting the Comptroller’s

 5   Office, Johnson necessarily would have introduced himself as a law enforcement agent
     conducting a fraud investigation so that the unidentified person would have reason to
 6
     provide the requested information. Since the declarant knew Johnson was a police
 7
     investigator seeking information to assist his investigation (and possible prosecution),
 8
     it is a non sequitur that the declarant “would objectively foresee that his statement
 9
     might be used in the investigation or prosecution of a crime.” King, 212 Ariz. 377.
10
     Therefore, under Crawford and its progeny, the declarant’s statement was testimonial
11
     in nature. Since there was no showing of the witness’s unavailability, and since
12
     Defendant had no prior opportunity to cross-examine him, the testimonial statement
13
     constituted a Confrontation Clause violation under Crawford.
14
     C.     Prejudice
15
     ¶104      The impact of such a statement cannot be overstated. From the jurors’
16   perspective, since an official federal agency dealing with bank records determined that
17   there was no such record, it must have been true. This is particularly true because
18   Brault conducted no cross-examination on this issue. The jurors’ reliance on the
19   statement, however, was completely mis-placed because absent the ability to cross-
20   examine the declarant, and absent cross-examination of the witness, the reliability of
21   the statement went untested, when, in fact, a host of reasons suggest it was unreliable,
22   especially when placed in proper context.
23   ¶105 Its admission was particularly prejudicial because Johnson’s testimony was the
24   only evidence the State offered suggesting that ITB did not exist. Johnson conducted
25   no further investigation of ITB. Admission was highly prejudicial because the

26   Certificate was one of just two purported fraudulent misrepresentations relating to

27   collateral motivating Seaver to invest, and the State’s case as to Arredondo’s

28                                             38
 1   knowledge of problems with the second collateral – the Gilbert Trust – was weak.
 2   Significantly, Randall could not remember telling Arredondo what he learned from the

 3   Trust attorney. (RT 7-6-06, 18). Moreover, since Randall testified he believed the

 4   trust was valid, and acted as if it were – by writing, after receiving the attorney’s letter,

 5   to Ron Gilbert and to the trust attorney, asserting the validity of Ron Gilbert’s interest
     – there would be no reason to tell Arredondo. Whether he was negligent or knew
 6
     exactly what he was doing, Randall clearly had a vested interest in obtaining the trust
 7
     funds and in not revealing to Arredondo, or anyone else, what the trust attorney had
 8
     advised him. Randall knew that the trust was the critical incentive for Seaver and
 9
     others to invest. Since the trust’s validity was essential to Randall’s continuing
10
     receipt of his substantial $ 10,000 per month retainer, at a time when his practice was
11
     going “down the tubes,” he told nobody.            Arredondo, a non-lawyer, had given
12
     Randall, who represented himself as a professor in contracts, the trust documents for
13
     his legal analysis, and trusted that analysis. (RT 5-26-09, 58).
14
     ¶106 Admission of the statement was even more prejudicial given two sets of
15
     circumstances. First, Randall confirmed that Arredondo had paid at least $185,000 for
16   the Certificate. Johnson’s bank summaries confirmed the $ 185,000 wire transfer.
17   (Ex. 190) It defies logic to suggest that Arredondo would pay that much money for a
18   Certificate he knew to be worthless.
19   ¶107 Moreover, while there were four banks involved in the transaction, the only
20   evidence suggesting the Certificate was fraudulent was the declarant’s statement as to
21   one of those banks. No evidence was presented suggesting the non-existence of the
22   other three banks: (1) Parexbank, which issued the S.W.I.F.T. message (Ex. 40)
23   confirming the Certificate’s transfer to Baltic Trust Company; (2) Baltic Trust
24   Company, which confirmed the veracity and authenticity of the Certificate and that it
25   was holding it for Randall’s benefit; and (3) the Baltic Banking Group , the bank to

26   which Randall wired the money. (Exhibits 42, 42a, RT 7-06-06, 23-32). Moreover,

27   at sentencing, Sigal explained that after just a few minutes on the Internet, he had

28                                                39
 1   found, and submitted as exhibits, documents reflecting the existence of Parex Bank and
 2   Baltic Trust Bank. (RT 5-26-09, 34-35).

 3   ¶108 Finally, the full prejudice of admitting the statement is better understood when

 4   placed in proper context. Johnson testified that he “contacted the Comptroller . . .

 5   because they have records of all banks licensed to do business in the United States .
     . . and all foreign banks licensed to do business here.” (RT 7-6-06, 19) (emphasis
 6
     added). Thus, the Comptroller’s Office does not maintain records of banks not
 7
     licensed to do business in the U.S. (Id.). Accordingly, assuming that ITB was not
 8
     licensed for business in the U.S., the Comptroller’s Office would not maintain any
 9
     record of it. Additionally, the process of transferring the Certificate through banks,
10
     whose existence Johnson did not question, suggests the reason for the complicated
11
     transfer: ITB was not licensed to do business here while the other banks were. Without
12
     the ability to cross-examine the declarant about the limited nature of its records and
13
     about the Comptroller’s records relating to the other three banks, Defendant was
14
     unable to show the jury the relative insignificance of the declarant’s statement.
15
     Despite the likelihood that the jury would rely heavily on the financial fraud expert’s
16   conclusions, Brault conducted no cross-examination whatsoever.
17                                   ARGUMENT FIVE
18           The trial court’s decision to impose Defendant’s five-year sentence
             for conspiracy consecutive to Defendant’s five-year sentences for
19           theft and fraud schemes violated Arizona’s Double Punishment
             Statute because under Gordon the crimes did not constitute multiple
20           acts.
21   A.      Standard of Review
22   ¶109 This Court reviews de novo whether the imposition of consecutive sentences
23   violates 13 A.R.S. § 116. State v. Urquidez, 213 Ariz 50, 52, 138 P.3d 1177, 1179.
24   rev. denied, 213 Ariz. 50 (2006).
25   B.      Applicable Law

26   ¶ 110     Section 13-116 A.R.S. prohibits punishing Defendant twice for the same act.

27   The statute provides that “[a]n act or omission which is made punishable in different

28                                             40
 1   ways by different sections of the laws may be punished under both, but in no event
 2   may sentences be other than concurrent.” State v. Gordon, 161 Ariz. 308, 312, 778

 3   P.2d 1204, 1208 (1989) citing A.R.S. § 13-116 (2006).

 4   ¶111 In Arizona, “to determine whether a constellation of facts constitutes a single

 5   act which requires concurrent sentences” courts have traditionally employed the
     “identical elements test, ” adopted in State v. Tinghitella, 108 Ariz. 1, 3, 491 P.2d 834,
 6
     836 (1972). Gordon explained that while Arizona still employs the identical elements
 7
     test, under certain circumstances, a second and third prong will be added. See
 8
     Gordon, supra 315-16. Thus, Gordon held that the identical elements test was the
 9
     threshold test of Defendant’s eligibility for consecutive sentences. See id. That test
10
     asks:
11
             [c]onsidering the facts of each crime separately , subtracting from the
12           factual transaction the evidence necessary to convict on the ultimate
             charge- the one that is at the essence of the factual nexus and that will
13           often be the most serious of the charges. If the remaining evidence
             satisfies the elements of the other crime, then consecutive sentences
14           may be permissible.

15   Gordon, supra, at 316 (emphasis added).          By predicating the permissibility of

16   consecutive sentences on whether the remaining evidence satisfies this test, Gordon

17
     made the identical element test the threshold inquiry.        See id.    Gordon further
     explained that in those instances where consecutive sentences “may be permissible,”
18
     two further tests would be applied to make the ultimate determination. Id. However,
19
     if the remaining evidence does not satisfy the elements of the other crime, then
20
     consecutive sentences are not permissible, and courts don’t reach the second and third
21
     prongs. See Gordon, id., State v. Carreon, 10 Ariz. 54, 74-75, 107 P.3d 900, 920-21
22
     (2005); State v. Alexander, 175 Ariz. 535, 537, 858 P.2d 680, 682 (App. 1993).
23
     Thus, in Carreon, the Supreme Court expressly concluded that because Defendant
24
     satisfied Gordon’s first prong, he “may be eligible” for consecutive sentences, and
25
     “therefore,” the court needed to apply Gordon’s next prong analysis. Carreon, supra
26
     at 74-75; also see State v. Williams, supra, at 560 (“Assuming that this first step is
27
28                                              41
 1   satisfied, multiple punishments are ordinarily permissible only if” the second or third
 2   prong satisfied).

 3   ¶112 The second prong asks “whether, given the entire ‘transaction,’ it was factually

 4   impossible to commit the ultimate crime without also committing the secondary crime.”

 5   Gordon, supra at 315. The third prong then asks “whether the Defendant’s conduct
     in committing the lesser crime caused the victim to suffer an additional risk of harm,
 6
     beyond that inherent in the ultimate crime.” Id.
 7
     ¶113 Significantly, Gordon explained that the identical elements test, “focuses on the
 8
     facts of the transaction and on the Defendant’s conduct in determining what is ‘an act’
 9
     under § 13-116.” Id., 313, fn. 5. Gordon contrasted this fact-intensive analysis to the
10
     double jeopardy analysis which “focuses on the proof necessary to establish the
11
     statutory elements” rather than on the actual evidence presented at trial. Id. citing
12
     Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980).
13
     C.     Legal Analysis
14
     ¶114    Here, the Gordon analysis reflects that consecutive sentences were not
15
     “permissible.”      The ultimate crime is usually is that crime “at the essence of the
16   factual nexus and that will often be the most serious of the charges .” Gordon, supra
17   at 315. Clearly, since the agreement between co-defendants was what tied all three
18   crimes together, it is “at the essence of the factual nexus.” Id. As to the seriousness
19   of the crimes, both substantive offenses and Conspiracy are Class Two Felonies, all
20   punished by a five-year sentences. Accordingly “neither is identifiable” as the ultimate
21   offense because “conspiracy takes on the same class as the offense that is the object
22   of the conspiracy,” State v. Rosberry, supra, 210 Ariz. 360, 370-71, 11 P3.3d 402,
23   412-13 (2005). However, Rosberry treated conspiracy as the “ultimate offense.”
24   (Id.). For these reasons, conspiracy is the “ultimate offense.”
25   ¶115 When considering conspiracy as the “ultimate offense,” after subtracting from

26   the factual transaction the evidence necessary for a conviction on conspiracy, the

27   remaining evidence clearly does not satisfy the elements necessary for theft or fraud

28                                              42
 1   schemes convictions.     As the jury was instructed, theft requires proof that: (1)
 2   Defendant was entrusted with another’s property for a limited use; and (2) Defendant

 3   knowingly used the property for an unauthorized use. The property entrusted was

 4   Seaver’s investment money. Fraud Schemes required proof that Arredondo, pursuant

 5   to a scheme to defraud,       “obtained a benefit” from the victim by fraudulent
     representations or omissions. See State v. Cook, 185 Ariz. 358, 916 P.2d 1074 (App.
 6
     1995) (requiring proof of benefit). The only way that the government could prove that
 7
     Arredondo received and converted the funds (theft) and prove that he obtained a
 8
     benefit (fraud schemes) was with evidence of the agreement between Randall and
 9
     Arredondo to deposit Seaver’s money in Randall’s            account and transfer it to
10
     Arredondo. Subtracting that agreement, which was the foundation of the conspiracy,
11
     the State could not prove that Arredondo had even received the funds, let alone
12
     converted them. Without receiving the funds, Arredondo could not put them to any
13
     use, let alone to an “unauthorized use.” Similarly, subtracting that agreement, the State
14
     could not prove fraud schemes because absent the transfer of funds, the State could not
15
     prove Arredondo received a benefit. Accordingly, subtracting the evidence of the
16   fundamental agreement of the conspiracy – the deposit and transfer agreement – the
17   evidence would not be sufficient to prove theft of fraud schemes.
18   ¶116 Moreover, especially given the very specific evidence in this case, which is
19   Gordon’s focus, given Seaver’s testimony, subtracting the evidence needed to prove
20   conspiracy would not leave sufficient evidence to prove theft or fraud schemes. Seaver
21   testified that there were “two factors” critical to his decision to invest: (1) the
22   agreement that Randall served as gatekeeper for all monies deposited and disbursed;
23   and (2) the agreement that Randall would hold the Gilbert Trust POA for Arredondo
24   and would assure Seaver that the Trust validly secured his investments. According to
25   Seaver’s own testimony, without these “two factors” – the fundamental agreements

26   underlying the conspiracy – Seaver would not have invested, and the evidence would

27   not be not sufficient to prove theft or fraud schemes.

28                                              43
 1   ¶117 Since the identical elements test is not satisfied, under Gordon and its progeny,
 2   Defendant is not “eligible for” consecutive sentences under A.R.S. 13-116. See

 3   Gordon, supra, 315-16, Carreon supra 74-75, Williams, supra 560. Accordingly,

 4   pursuant to Gordon and its progeny, the second and third prongs of the test are not

 5   applied. Id. Accordingly, the Court erred by imposing consecutive sentences.

 6
                                       CONCLUSION
 7
 8
     ¶118 Based on the foregoing, Appellant Aaron Arredondo requests this court to
 9
     reverse his conviction and/or vacate his sentence.
10
11
           Dated: (electronically filed) June 29, 2010.
12
13
                                            LAW OFFICES OF ROGER H. SIGAL
14
15
                                            By:    /s/ Roger H. Sigal
16                                          Roger H. Sigal
17
                                            447 South Meyer Ave.
                                            Tucson, Arizona 85701
                                            Tel. (520) 624-6222
18                                          State Bar #13094
19                                          ATTORNEY FOR APPELLANT
                                            AARON ARREDONDO
20
21
22
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 1
                            CERTIFICATE OF COMPLIANCE
 2
           Pursuant to Rule 31.13(b)(2), Ariz. R. Crim. P., undersigned counsel hereby
 3
     certifies that this Opening Brief DOES NOT comply only with respect to the word
 4
     count limit (a Motion To Exceed Word Count was previously filed), but this
 5   OPENING BRIEF DOES comply with the other rules of Rule 31.13(b) as follows:
 6         1. The brief is proportionately spaced, and uses 14 point Times New Roman
 7   typeface, in compliance with Rule 31.13(b)(1);
 8         2. The brief contains 14,756 words, and has an average of no more than 280
 9   words per page, including footnotes and quotations, in compliance with Rule
10   31.13(b)(2);
11         3. The brief is double-spaced, with top and margins of at least 1 ¼ inches and
12   side margins of at least one inch, in compliance with Rule 31.13(b)(1).
13         Dated: (electronically filed) June 29, 2010.
14
15                                         LAW OFFICES OF ROGER H. SIGAL

16                                   By:   /s/ Roger H. Sigal
17
                                           Roger H. Sigal
                                           447 South Meyer Ave.
                                           Tucson, Arizona 85701
18                                         Tel. (520) 624-6222
                                           State Bar #13094
19
                                           ATTORNEY FOR APPELLANT
20                                         AARON ARREDONDO
21
22
23
24
25
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28                                            45
 1                          CERTIFICATE OF COMPLIANCE
 2         I hereby certify that two copies of the Appellant’s Opening Brief will be mailed

 3   on June 29, 2010 to:

 4                            John Evans, Esq.
                              Unit Deputy Chief
 5                            Office of the Arizona Attorney General
                              400 W. Congress, Suite S-315
                              Tucson, Arizona 85701
 6
 7               Dated: (electronically filed) June 29, 2010.
 8                                          LAW OFFICES OF ROGER H. SIGAL
 9                                   By:    /s/ Roger H. Sigal
10                                          Roger H. Sigal
                                            447 South Meyer Ave.
11                                          Tucson, Arizona 85701
                                            Tel. (520) 624-6222
12                                          State Bar #13094
13                                          ATTORNEY FOR APPELLANT
                                            AARON ARREDONDO
14
15
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20
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28                                            46

				
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