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).

Fitch 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 http://www.richardkruse.com/products/6th_Amendment_T-Shirt.jpg

Ultraviolet image of the California Evening Primrose from http://www.dailymail.co.uk/sciencetech/article-473897/A-bees-eye-view-How-insects-flowers-differently-us.html



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

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Case o' The Week: 22, a Tad Too Few -- Ressam and Substantive Reasonableness Review

In an en banc opinion, the Ninth last week delivered a watershed sentencing decision that will control all future sentencing appeals in the Circuit.

(If the appeal involves recanting cooperating Algerian terrorists caught at the Canadian border). United States v. Ressam, 2012 WL 762986 (9th Cir. Mar. 12, 2012), decision available here.

Thomas Hillier II

Players: Righteous fight by Thomas Hillier, II, Fed. Public Defender W.D. Wa. Majority decision by Judge Clifton, joined by Judges Graber McKeown and Bybee. Concurrence by Judge Reinhardt, joined by Chief Judge Kozinski and Judge Wardlaw. Dissent by Judge Schroeder, joined by Judges Paez, Berzon, and Murguia.

Facts: Ressam, an Algerian terrorist, planned to blow-up LAX. Id. at *1-*2. He was caught at the Canadian border with a car full of explosives. Id. The trial resulted in a guilty verdict, and soon after Ressam began cooperating against other terrorists. Id. at *4. His cooperation was extensive: over 280 hours of trial testimony, depos, and debriefings. Id. at *5. After long confinement under tough conditions Ressam=s mental state deteriorated B he ultimately refused to continue to cooperate and recanted previous allegations. Id. at *6. After a tortured appellate procedural history, Ressam finally faced sentencing with a 65-life guideline range. Id. at *9. The experienced district judge B who had lived with the case twelve years B varied downwards to twenty-two years. Id. at *12. The court at sentencing conducted an extensive ' 3553(a) analysis and review of the cooperation efforts of Ressam. Id. at *12-*15.

Hon. Richard Clifton

Issue(s): AThe government appeals the sentence imposed by the district court upon  . . . Ressam . . . as substantively unreasonable.@ Id. at *1.

Held: ARecognizing the deference owed to the district court, it is our conclusion that the sentence imposed by the district court in this case was substantively unreasonable. We reach that conclusion after examining the 'totality of circumstances' as directed by Gall . . . and Carty.@ Id. at *8 (citations omitted).

Of Note: In a potent dissent, Judge Schroeder persuasively argues that A[t]he majority=s implicit assumption that terrorism is different, and must be treated differently . . . flies in the face of the congressionally sanctioned structure of sentencing that applies to terrorism as well as all other kinds of federal criminal offenses.@ Id. at *26. 

   Want an example? 

   In Ressam, a downward departure to one-third of the guideline range was Asubstantively unreasonable.@ Id. at *18. But just five months ago, in Fitch (a non-terrorism case), the Ninth upheld an upward departure over five times the guideline range (from four years to twenty-one years) as Asubstantively reasonable.@ See United States v. Fitch, 659 F.3d 788 (9th Cir. 2011), decision available here (2011); see generally blog here.

  ADeath is different@ B maybe, implicitly, terrorism is, too.

How to Use: Volumes will be written on Ressam, but here=s the bottom line: it is probably a one-off. 

Hon. Stephen Reinhardt

  With only four votes, Judge Clifton=s majority needed the additional votes of Judge Reinhardt's three concurring judges to reverse the district court's sentence. (Takes six to win an en banc).

   In an earlier opinion, Bradley, Judge Clifton himself clearly explained the limited precedential value of a fractured en banc decision: AThe plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of the circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds.@ Bradley v. Henry, 518 F.3d 657 (9th Cir. 2008) (ord. amend. and denying rh=g en banc), available here; see also blog here. 

  Bradley means that Judge Reinhardt=s concurrence is likely the only Atrue@ holding of Ressam. That concurrence emphasizes that Ressam is not the case "in which to establish general principles governing when 'substantive unreasonableness= will warrant vacating a sentence imposed by the district court.@ Id. at *27 (Reinhardt, J., concurring). Judge Reinhardt goes to great lengths to limit his concurrence to this case and these facts, for a Aforeign enemy terrorist.@ Id. at *30. In short, Judge Clifton=s long and thoughtful discussion of substantive reasonableness, id. at *16-*25,  B though interesting B is probably dicta given the extraordinarily narrow language of Judge Reinhardt=s concurrence.

                                               

For Further Reading: Prosecutors, Beware the Ides of March. On March 15, a court-ordered report on the Brady violations from the Alaska Stevens case was released. Over five-hundred pages long, the report is the result of a comprehensive two-year investigation. 

How profound were the Brady violations in Stevens? Bad enough to immediately spark new Brady reform legislation in the Senate. For a comprehensive review of the Stevens case and the need for Brady reform, with helpful summaries, links to the Stevens report, and to Senate Bill 2197, see NACDL=s great posting here. 

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

Image of Federal Public Defender Thomas Hillier from http://www.stmartin.edu/whatsnew/events/2006/AllSaints/ThomasHillier.aspx
Image of the Honorable Richard Clifton fromhttp://upload.wikimedia.org/wikipedia/en/4/4a/Richard_R._Clifton_Circuit_Judge.jpg
Image of the Honorable Stephen Reinhardt from http://abovethelaw.com/_old/images/entries/Federalist%20Society%20gala%203.jpg

Image of the "Ides of March" from http://blogs.houstonpress.com/artattack/the‑ides‑of‑march.jpg


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U.S. v. Fitch, 97-10607 (9-23-11) (Block, Sr. D.J., with N. Smith; dissent by Goodwin).

Can a court sentence for a murder proved by clear and convincing evidence when the convicted offenses were fraud and money laundering? Yes, holds the 9th. The defendant here fell in love with a Colombian woman, and followed her to England. There, they continued seeing one another. By the way, he marries another woman, who agrees to follow him to Nevada. Money is transferred, and a trailer park home purchased (we all have our dreams). She and defendant go on a trip, and she is never seen again. Her money starts disappearing, family and friends do not hear from her, and even the bank starts calling. The defendant then steals an identity and marries his Colombian girlfriend. Prosecuted and convicted for numerous fraud offenses, he faces guidelines of 41 to 51 months. The court sentences him to 262 months. The 9th is troubled by the increase of sentence for an offense for which the defendant was not charged, much less convicted. The court found facts beyond clear and convincing and tied it to the fraud by stating that the murder provided the means for the fraud. The sentence was not at the top of the statutory max if all the counts ran consecutively nor was the sentence as long as murder. The 9th recognized that a court could consider all sorts of information, and so affirmed. There were no procedural errors, nor was the sentence substantively unreasonable. The 9th did seem uneasy, but deferred to the court. Goodwin, dissenting, argued that facts were found by the judge that increased the sentence and so ran afoul of the Sixth Amendment. This sentence went beyond because the murder was not charged, nor proved, and the sentence was for a crime for which he was not charged.

U.S. v. Rivera, No. 10-50313 (9-23-11) (Korman, Sr. D.J., with Noonan and Wardlaw).

The 9th held that petty thefts can be aggravated felonies for 1326 purposes because they act as recidivist enhancements that raise the sentence of theft to more than a year. Petty theft in the California code is not a generic theft, but a modified categorical approach. Looking at the charging document, plea, and judgment, supports such a finding.

Orel wits v. Sisto, No. 09-16142 (9-22-11) (Graber with Bea; O'Scannlain concurring).

The district court ordered the state to conduct a new parole hearing. The warden appealed. Maybe the court erred in ordering the hearing; after all, the Supremes in Swarthout subsequently held that the analysis was whether some due process was followed, not the decision itself. However, the ordering of a new hearing is not a release of the petitioner. Hence, it is not a final order. There were other claims unresolved. The appeal, therefore, was dismissed for lack of jurisdiction. O'Scannlain argues that the lack of jurisdiction should be characterized as mootness in light of the fact that the hearing was held, and the petitioner received relief. O'Scannlain worries that a state could not appeal an erroneous order that stops short of ordering release.

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).