Sunday, October 02, 2011

Case o' The Week: The Sixth Glitch in Fitch -- Upward Variances on Judge-Found Facts

How does one manage to get a
twenty-one year sentence for murder, when:

● No body is ever found;

● No murder charges are ever filed;

● No jury ever hears the charge; and,

● There is insufficient evidence to prove the suspected crime beyond a reasonable doubt?

Easy -- just get convicted of fraud in federal court.
United States v. Fitch, 2011 WL 4430809 (9th Cir. Sept. 23, 2011), decision available here.

Players: Decision by Senior District Judge Block (ED NY), joined by Judge NR Smith. Dissent by Judge Goodwin.

Facts: David Fitch dated Ms. Molano and went to visit her in England. While there, and while still romantically involved with Molano, Fitch met and married a different woman: Ms. Bozi. Id. Bozi came to the US and lived with Fitch in his Nevada mobile home. Soon after, Ms. Bozi stopped calling family and friends abroad. Id. at *2.

For weeks after Bozi’s last call, Fitch withdrew money from her bank account (one time wearing a fake mustache). He also withdrew a $8,000 cashiers check from Bozi’s account, made payable to Molano. Id. A search of Fitch’s trash produced a receipt for chloroform sold to, “Dr. David.” Fitch later tried to sell used women’s clothing and shoes, explaining his wife had “left him.” Id.

Under investigation, Fitch made a false ID and passport, flew the England, and married Molano using an assumed identity. Id. at *3. He was arrested when he returned to the U.S.; later searches revealed guns, Bozi’s passport, and a number of books in Fitch’s briefcase. Id. at *3 & n.4.

Ms. Bozi has not been heard of since her last calls to her friends and family.

Issue(s): “[ ] Fitch was convicted by a jury of . . .bank fraud, . . . fraudulent use of an access device, . . . attempted fraudulent use of an access device, . . . laundering monetary instruments, and . . .money laundering. The applicable Sentencing Guidelines range was 41–51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife's murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range – albeit below the statutory maximum – based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this . . .” Id. at *1 (emphases added) (footnote omitted).

Held: “. . . but are constrained to affirm.” Id.

Of Note: The unfortunate books in Fitch’s briefcase? “The Modern Identity Changer; How to Make a Silencer for a .45;. . . The Revenge Encyclopedia; 100 Ways to Disappear and Live Free; . . . Hit Man, A Technical Manual for Independent Contractors; . . . The Death Dealer's Manual; . . . How To Make a Silencer for a .22; Methods of Disguise; . . . New ID in America; and Kill Without Joy! The Complete How to Kill Book.” Id. at *3 & n.4.

How to Use: Fitch is a Big Deal. It tolerates a skyrocketing sentence, based solely on facts (a suspected murder) not found by a jury, and not proved beyond a reasonable doubt. In short, the opinion eviscerates the intent of Apprendi and fully implicates Justice Scalia’s Sixth Amendment concerns. See id. at *6. (To be fair, visiting Judge Block concedes many of these concerns -- and gives the impression he'd welcome further review in light of the Sixth Amendment issues).

cries out for Supreme Court review.

Moreover, Fitch hits us just as the Ninth struggles with the meaning of “substantive reasonableness” review. In Fitch the guideline range was just one fifth of the ultimate sentence imposed, yet the panel upholds this whopping upward variance. (The sentence imposed is five times the guideline range). Fitch came out just days after the Ressam en banc argument (argument available here), while "substantive reasonableness review" is very much on everyone's minds.

In Ressam, a downward variance resulted in a sentence 1/3 of the guideline range – yet it is Ressam that is getting the close look on substantive reasonableness review. Fitch is far-and-away the greater variance from the guidelines (a variance upward), but it is Ressam (a variance downward) that is now undergoing substantive reasonableness review by an en banc court of the Ninth Circuit.

Put differently, will the Ninth's new rule be that an upward variance five times the guideline range is OK, but a downward variance to one third of the guideline range is not?

(We know, we know -- in Gall the Supreme Court "reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." 522 U.S. at 47. Still, we're in "rough justice" territory here - and if you listen to the Ressam en banc argument, the jurists are rightly concerned how any new substantive reasonableness rule will resonate against other cases).

Will Fitch and Ressam together mean that, practically speaking, substantive reasonableness review is just for government appeals, for sentences that are too low? Continue to make and preserve objections to the substantive reasonableness of sentences: Fitch and Ressam are a developing duo of cases that could have a big impact on federal sentencing law in the Ninth.

For Further Reading: Because Section 3553(a)’s parsimony provision is mandatory, Fitch affirms an unconstitutional sentence based on facts not proved to a jury beyond a reasonable doubt. For an elegant explanation of why this is so, see Steven Hubachek, The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision, 33 Am. J. Trial Advoc. 521 (2010).

(The California Evening Primrose (above right), it turns out, is a lot like Section 3553. To find out why, hit Huba's article).

Image of the Sixth Amendment from

Ultraviolet image of the California Evening Primrose from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Blogger Andre Dayani said...

Without a doubt, it deserves the Highest Court to hear the case, but what would they say? Obviously, Scalia is a minority in opposing the current system. Also if you consider the 100 years of precedent basically giving judges supreme power in sentencing, the outcome doesnt look great... I am writing a law review article on the subject. What are your thoughts about a solution to this problem?

Wednesday, October 12, 2011 8:27:00 PM  

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