Opinion
BRIAN J. STRETCH (CABN 163973) Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515 KYLE F. WALDINGER (ILBN 6238304) Assistant United States Attorney, San Francisco, California, ALLAN GORDUS (MOBN 48210) Trial Attorney, DOJ Consumer Protection Branch Liberty Square Building Washington, DC Attorneys for Plaintiff.
SIDLEY AUSTIN LLP MARK E. HADDAD, DOUGLAS A. AXEL, Attorneys for Defendant W. SCOTT HARKONEN.
STIPULATION AND [PROPOSED] ORDER REGARDING INITIATION OF HOME DETENTION CONDITION OF TERM OF PROBATION
RICHARD SEEBORG, District Judge.
The United States of America and the defendant W. Scott Harkonen, by and through their respective counsel, hereby stipulate and agree, and do jointly request, that this Court approve the lifting of the stay of Special Condition No. 2 of the defendant's term of probation. That special condition requires the defendant to complete six months of home detention. An order from this Court approving the lifting of the stay will allow the Probation Office to implement this portion of the judgment order. The assigned Probation Officer, Maria Ross, has requested that the parties obtain an order from the Court approving of the lifting of the stay. In support of their stipulation and joint request, the parties state as follows:
1. On September 29, 2009, the defendant W. Scott Harkonen was convicted of wire fraud at the conclusion of a jury trial. See CR 240.
2. On April 13, 2011, The Honorable Marilyn Hall Patel sentenced the defendant to a three-year term of probation and ordered him to pay a fine of $20,000. The court also imposed several special conditions of probation, including that the defendant complete six months of home detention and that he perform 200 hours of community service. The court stayed the home-detention condition "until further notice - pending appeal in this matter." See CR 382, at 3.
3. The defendant appealed his conviction to the Ninth Circuit Court of Appeals. On March 4, 2013, a three-judge panel upheld the defendant's wire fraud conviction in an unpublished per curiam opinion. See United States v. Harkonen, 2013 WL 782354 (9th Cir. 2013).
4. The defendant filed a petition for rehearing en banc on March 29, 2013. The court of appeals denied that petition on May 7, 2013. The mandate was issued on May 17, 2013.
5. Defendant intends to petition the United States Supreme Court for a writ of certiorari, but does not object to the stay condition being lifted at this time.
6. Given these facts, the parties jointly request that the Court now approve the lifting of the stay of the home-detention condition. The defendant has now been on probation for more than two years. See 18 U.S.C. § 3564(a) ("A term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court."). According to the assigned Probation Officer, Maria Ross, the defendant has not served any of his six months of home detention. Lifting the stay of the home detention special condition at this time is appropriate.
7. Judge Patel retired from the court on September 30, 2012. Accordingly, the parties jointly request that this matter either be handled by the duty district court judge in San Francisco, or that the case be re-assigned to a new judge.
SO STIPULATED.
[PROPOSED] ORDER
For the reasons stated in the parties' stipulation, the Court hereby orders that the stay of Special Condition No. 2 of the defendant W. Scott Harkonen's term of probation is hereby LIFTED. The Probation Office is ordered to implement that portion of the judgment order by no later than July 1, 2013.
IT IS SO ORDERED.