Motion To Amend The Judgmentn And Conviction Order
- Date
- 2021-06-17
Summary
The government's response to a pro se motion to amend the Judgment and Conviction Order in United States v. Robert S. Stewart Jr., Case No. 1:21-cr-005 (RDA), in the U.S. District Court for the Eastern District of Virginia, filed November 7, 2021 as Document 21. The motion asks the Court to add a recommendation that the defendant serve the final 12 months of his sentence in a BOP Residential Re-Entry Center. The response recounts the guilty plea to a three-count Criminal Information under 18 U.S.C. § 1001, 18 U.S.C. § 1343 and 18 U.S.C. § 641 and the sentence of 21 months imprisonment. It argues that Rule 35(a) does not appear to authorize the amendment, states that the government has no objection to the defendant's participation in the program, and suggests BOP officials are best placed to decide. It is signed by an Assistant United States Attorney.
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Case 1:21-cr-00005-RDA Document 21 Filed 11/07/21 Page 1 of 4 PageID# 214
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA
v. Case No. 1:21-cr-005 (RDA)
ROBERT S. STEWART JR,
Defendant.
GOVERNMENT’S RESPONSE TO DEFENDANT’S PRO SE
MOTION TO AMEND THE JUDGMENTN AND CONVICTION ORDER
The defendant, Robert S. Stewart, Jr., requests the Court amend the Judgement and
Conviction Order entered on June 17, 2021 to include a recommendation to the Bureau of Prisons
(“BOP”) that Mr. Stewart serve the final 12 months of his sentence in a BOP Residential Re-Entry
Center (ECF Entry #19).
PROCEDURAL HISTORY
On February 3, 2021, Mr. Stewart entered a guilty plea to a three-count Criminal
Information charging him with making false statements to the Federal Emergency Management
Agency (“FEMA”) and the Department of Veteran’s Affairs (“VA”) in order to obtain lucrative
contracts to provide those agencies with much needed personal protective equipment (“PPE”)
during the early stages of the COVID-19 pandemic, in violation of 18 U.S.C. § 1001 (Count 1);
engaging in a wire fraud scheme in which he unlawfully acquired and then misused federally
insured loans from Celtic Bank and the Small Business Administration (“SBA”), in violation of
18 U.S.C. § 1343 (Count 2); and theft of government funds by falsely claiming to have served in
the United States Marine Corp in order to fraudulently increase his veteran’s benefits, in violation
of 18 U.S.C. § 641 (Count 3).
Case 1:21-cr-00005-RDA Document 21 Filed 11/07/21 Page 2 of 4 PageID# 215
On June 16, 2021, the Court considered the sentencing memorandum and oral arguments
of counsel as well as the allocution of Mr. Stewart, and after careful consideration of the factors
set forth in Title 18, United States Code, Section 3553(a) sentenced Mr. Stewart to term of 21
months imprisonment. During the sentencing hearing, the Court permitted Mr. Stewart to self-
surrender to a facility to be designated by the BOP. The following day, on June 17, 2021, the
Court entered the Judgment and Conviction Order. Mr. Stewart did not appeal his conviction or
sentence.
On July 28, 2021, Mr. Stewart reported as directed to the BOP’s Federal Correctional
Institution in Talladega, Florida to begin his 21-month sentence.
On October 20, 2021, Mr. Stewart filed this motion pro se.
APPLICABLE FEDERAL RULE OF CRIMINAL PROCEDURE
Rule 35(a) of the Federal Rules of Criminal Procedure does not appear to authorize
amending a final Judgement and Conviction Order to grant the relief sought by Mr. Stewart.
Specifically, Rule 35(a) states that:
Within 14 days after sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.
There is nothing in Mr. Stewart’s motion or in the record as a whole that would suggest the
Court’s silence as to whether Mr. Stewart should be placed in a Residential Re-Entry Center for
the final 12 months of his sentence was the product of “arithmetical, technical or other clear error.”
As a result, there does not appear to be a procedural vehicle by which the Court can now amend a
final Judgment and Conviction Order to include a specific sentencing recommendation to the BOP.
POSITION AND RECOMMENDATION OF THE GOVERNMENT
The government has no objection to Mr. Stewart participating in the Residential Re-Entry
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Case 1:21-cr-00005-RDA Document 21 Filed 11/07/21 Page 3 of 4 PageID# 216
Program. There is nothing about Mr. Stewart’s background or offense conduct that would suggest
he is not a suitable candidate for this important program. The government’s position is simply that
BOP officials are in the best position to determine which inmates are the most appropriate
candidates to receive the BOP’s limited resources. BOP officials can compare the benefits of the
program with the needs of all eligible inmates and thereby make an individualized assessment as
to which inmates are best suited to go into the program and for how long. It is entirely possible
that given the parameters of the Residential Re-Entry program, BOP officials would prefer inmates
who have served long prison sentences and may have significant challenges re-entering society be
given preference for the program in order to facilitate their transition from prison to the
community. Mr. Stewart, on the other hand, will have served a relatively short prison term and
does not seem to have any particular hurdles facing him as he transitions back into civilian life.
For these reasons, the government – and I would respectfully suggest the Court – should decline
to weigh in and recommend Mr. Stewart be given preference for the re-entry program.
To the extent Mr. Stewart wants BOP officials to know the Court’s thoughts at the time of
sentencing, Mr. Stewart – perhaps through counsel – could rely on a transcript of the sentencing
hearing. At sentencing, the Court took great care to discuss and balance the positive aspects of
Mr. Stewart’s life and background with his criminal conduct. A transcript of Mr. Stewart’s
sentencing hearing would seem to provide BOP officials with the very analysis that could be most
valuable to their decision-making process. If, however, in the end, the Court feels it would be
appropriate to recommend Mr. Stewart for the full 12 months in the Residential Re-Entry Program
and there is no procedural vehicle to amend the Judgement and Conviction Order, the government
would have no objection to the Court writing a letter or in some other manner communicating the
Court’s recommendation to the BOP .
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Case 1:21-cr-00005-RDA Document 21 Filed 11/07/21 Page 4 of 4 PageID# 217
Respectfully submitted,
Jessica D. Aber
United States Attorney
By: /s/
William Fitzpatrick
Assistant United States Attorney
United States Attorney’s Office
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3868
William.fitzpatrick@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2021, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notification of that electronic filling
(NEF) of the foregoing to the attorney of record for the defendant. On November 8, 2021, I caused
this submission to be mailed, postage pre-paid, to Mr. Stewart, Registration No. 28576509, at FCI
Talladega, Talladega, Alabama 35160.
/s/
William Fitzpatrick
Assistant United States Attorney
United States Attorney’s Office
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3768
William.fitzpatrick@usdoj.gov
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