Case 3:12-cr-00141-KS-FKB Document 96 Filed 03/03/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION UNITED STATES OF AMERICA v. H. CLAIBORNE FRAZIER CRIMINAL NO. 3:12cr141 KS-FKB

GOVERNMENTS RESPONSE IN OPPOSITION TO DEFENDANT H. CLAIBORNE FRAZIERS MOTION TO LIMIT THE GOVERNMENTS PROFFER OF OVERT ACTS The United States Attorney for the Southern District of Mississippi, by and through the undersigned Assistant United States Attorney, submits this Response in Opposition to the Defendant=s Motion to Limit the Governments Proffer of Overt Acts, and in support thereof states the following: 1. Defendant H. Claiborne Frazier was indicted in Count 1 of the pending Indictment [1] 1

which charges a multi-object conspiracy to commit the offenses of bank fraud (18 U.S.C. 1344), mail fraud (18 U.S.C. 1341), and/or wire fraud (18 U.S.C. 1343). On June 13, 2014, this Court entered and Order scheduling defendant H. Claiborne Frazier for jury trial on September 30, 2013. [50] 2. On September 13, 2013, at 10:38 a.m. in an email to the U.S. Attorneys Office, former

defense counsel requested 4 specific agreements by the Government, 3 of which related to timing of sentencing, detention between plea and sentencing, and the defendants request to be sentenced to a particular facility. Only one item related to the defendants change of plea hearing: a request that the Government agree to confine its statements of what it would have proven at trial to overt acts committed by Claiborne involving BancorpSouth and M & F Bank.
1

Bracketed citations refer to docket numbers of previously filed documents such as pleadings, orders, plea agreement, and/or defense exhibits to defense motions.

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[90-1]. On that same date, at 11:28 a.m., the undersigned Assistant U.S. Attorney on behalf of the Government agreed in an email response only to limit the overt acts referenced in its Factual Basis to such acts involving the charged fraud against BancorpSouth Bank and/or M & F Bank.[Id.] 3. On September 16, 2013, defendant H. Claiborne Frazier entered his guilty plea to Count

1 of the Indictment. The defendants Plea Agreement [73] and his Plea Supplement (filed under seal with the Court) at the time of his guilty plea embody the terms of his plea agreement with the Government. During the defendants guilty plea colloquy, the Government did exactly what it agreed to do as defined in the 9/13/2013 email and limited the overt acts it referenced in its Factual Basis to such acts involving the charged bank fraud object of the conspiracy involving victims BancorpSouth Bank and M & F Bank. [90-2, p. 21-26]. The defendants motion admits that the Government complied with this agreement. [89, para.2] 4. The Government made no other agreement with the defendant in any way related to his

change of plea hearing 2, as it reflected in the transcript of the defendants plea colloquy with the Court, fully exhibited in the defendants motion. During the plea colloquy, in responding to the Courts request for the undersigned Assistant U.S. Attorney to state the sum and substance of the plea agreement, the Government specifically noted that pursuant to Uniform Local Criminal Rule 49.1, the complete terms of the plea agreement between the Government and the defendant were contained in the two documents entitled Plea Agreement and Plea Supplement. [90-2, p.15] The undersigned Assistant U.S. Attorney stated that the defendant had agreed to plead guilty to Count 1 of the Indictment and had agreed to waive certain rights set forth thereafter. [Id., p.16] Thereafter, under oath and in response to specific questions from this Court, the defendant acknowledged the following:
2

The defendants motion identifies no other alleged promise by the Government in support of his motion.

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a. b. c.

The defendant had the plea agreement before him; [Id., p.18]; The defendant had read and discussed it with his lawyer; [Id.]; The defendant agreed that the plea agreement correctly contained the entire agreement made by the defendant and the government; 3 [Id.]; The defendant understood that the plea agreement in no way limits the sentence the court can impose; [Id.]; The defendant understood that a number of things will be considered in the sentence, including relevant conduct, that will be part of the presentence investigation. [Id., p.21];

d.

e.

5.

Relevant provisions of the Plea Agreement [73] provide as follows: a. Defendant further understands that Defendant is liable to make restitution for the full amount of the loss determined by the Court, to include relevant conduct, which amount is not limited to the count of conviction. [73, para. 2, p.2] Defendant further acknowledges and agrees that any factual issues regarding the sentencing will be resolved by the sentencing judge under a preponderance of the evidence standard, and Defendant waives any right to a jury determination of these sentencing issues. Defendant further agrees that, in making its sentencing decision, the district court may consider any relevant evidence without regard to its admissibility under the rules of evidence applicable at trial. [73, para.7e, p.5-6] It is further understood that the plea agreement and the plea supplement completely reflects all promises, agreements and conditions made by and between the United States Attorneys Office for the Southern District of Mississippi and Defendant. Defendant and Defendants attorney of record declare that the terms of this plea agreement have been: 1. 2. 3. 4. 5. Read by or to Defendant; Explained to Defendant by Defendants Attorney; Understood by Defendant; Voluntarily Accepted by Defendant; and Agreed to and Accepted by Defendant. [73, para. 8, p.6]

b.

c.

Prior defense counsel also agreed with the defendant that the plea agreement correctly stated the entire agreement made between the Government and the defendant. [Id.]

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6.

Relevant provision of the Plea Supplement include paragraph 2a(iv) in which the

Government agrees to inform the U.S. Probation Office and the Court of the nature and extent of the Defendants activities with respect to this case and all other activities of the Defendant which the U.S. Attorney deems relevant to sentencing. This paragraph in no way limits the information that the Government turns over to the U.S. Probation Office regarding any aspect of the defendants activities as they relate to sentencing, including relevant conduct. Also, paragraph 6, p.3, specifically provides that matters referred to in remaining counts of the indictment may be used as relevant conduct in computing the applicable Sentencing Guideline range. 7. While the defendants motion cites a number of cases which generally discuss

enforcement of plea agreements, he fails to tie any of these cases to the facts of the case at bar. Simply stated, he is unable to do so, because the facts of the case at bar fail to support any finding of breach of the plea agreement that would necessitate the application of the cases he cites. 8. Further the defendants motion fails to cite any applicable legal authority supporting his

apparent claim that his sentencing guideline calculation under the U.S. Sentencing Guidelines is exempted from the application of the relevant conduct provisions. The U.S. Probation Office applied the U.S. Sentencing Guidelines in calculating this defendants advisory sentence for the Court. The presentence investigation report which provides this Court with an advisory sentencing guideline calculation generated from the appropriate U.S. Sentencing Guidelines Manual was prepared by the U.S. Probation Office, not the Government. Nonetheless, inexplicably the defendant argues that the Government has breached the plea agreement because U.S. Probation has included relevant conduct in his sentencing guideline calculation.

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9.

Clearly, the evidence outlined above demonstrates that the Government has not breached

its plea agreement, and additionally complied with the defendants request to discuss in its Factual Basis for the guilty plea colloquy only those overt acts described above, and the defendant offers no evidence to demonstrate otherwise. The email upon which the defendant relies indicates NO agreement by the Government to excuse the defendant from his responsibility or relevant conduct under U.S.S.G. 1B1.2, 1B1.3 or 1B1.4, or to limit his sentencing exposure under those sections or any other sections involving relevant conduct, as the guilty plea colloquy between the defendant and court confirms. The Governments conduct has at all times been consistent with its agreement. Consequently, the Court should not permit the defendant to withdraw his guilty plea. WHEREFORE, PREMISES CONSIDERED, the Government respectfully requests that the Defendant=s motion be denied. GREGORY K. DAVIS United States Attorney
By:

/s Carla J. Clark

CARLA J. CLARK Assistant United States Attorney MS Bar No. 9490

CERTIFICATE OF SERVICE I, CARLA J. CLARK, Assistant United States Attorney, hereby certify that on March 3, 2014, I electronically filed the foregoing Government=s Response to Defendant=s Motion to Limit the Governments Proffer of Overt Acts with the Clerk of the Court using the ECF system which sent notification of such filing to all parties of record.
/s

Carla J. Clark

Assistant United States Attorney