Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Gregory MONACO, Defendant-Appellant.

Nos. 87-1014, 87-1015.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 29, 1988* .Decided Jan. 27, 1989.

Before JAMES R. BROWNING, HUG, and BEEZER, Circuit Judges.


MEMORANDUM** 

Monaco appeals from the judgment and sentence imposed after a plea of guilty to mail fraud, in violation of 18 U.S.C. § 1341 (1982), and attempted tax evasion, in violation of 26 U.S.C. § 7201 (1982). He was sentenced to five years on the mail fraud count and two years on the attempted tax evasion count, the terms to run consecutively. Monaco contests the sentence imposed. Specifically, he contends that material statements in the presentence report were false or misleading and, accordingly, that the district court should have held an evidentiary hearing to resolve his challenges to the statements. We have jurisdiction over Monaco's appeal pursuant to 18 U.S.C. § 3742 (Supp.IV 1986), but will review the district court's decision to deny Monaco's request for an evidentiary hearing only for abuse of discretion. See United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir. 1988).

A district court "may 'consider a wide range of information in arriving at the sentencing decision.' " Id. at 1149 (quoting United States v. Givens, 767 F.2d 574, 585 (9th Cir.), cert. denied, 474 U.S. 953 (1985)). Thus, it is required to hold an evidentiary hearing on challenges to a presentence report only if the defendant establishes that material information lacks " 'some minimal indicium of reliability beyond mere allegation.' " Id. (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984)). A defendant's bare denial, unsupported by evidence, of information in a presentence report is insufficient to undermine the reliability of that information, particularly when the defendant had access to evidence concerning its reliability. See United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987) (per curiam); United States v. Morgan, 595 F.2d 1134, 1138 (9th Cir. 1979).

On appeal, Monaco identifies three types of inaccuracies in the presentence report, each of which he alleges necessitated an evidentiary hearing.1  First, he claims that various statements contained in the report, although technically true, create a false impression regarding the scope of his involvement in the conspiracy that resulted in his arrest. Second, he contends that several statements found in the report regarding his involvement in the overvaluation of certain properties are erroneous. Finally, he protests the inclusion of hearsay testimony in the presentence report. We address each contention in turn.

1. Alleged Failure to Apportion Responsibility

We are unpersuaded by Monaco's numerous objections to statements in the presentence report on the ground that, while technically true, they fail to make clear his limited involvement in the conspiracy which forms a backdrop for his convictions. A sentencing court may rely on all statements in a presentence report that bear an indicium of reliability. Monaco, 852 F.2d at 1149. Monaco concedes that the statements he challenges are technically accurate. This confession, however, does not end our inquiry. Rather, remand for resentencing might still be appropriate if the sentencing court relied on " [u]nreasonable inferences and material assumptions which find no support in the record." United States v. Safirstein, 827 F.2d 1380, 1387 (9th Cir. 1987). Even under this standard, however, Monaco's complaints do not require remand because he has failed to offer any evidence that the district court in fact drew impermissible inferences from the statements he challenges.

Indeed, a review of the record reveals that none of the contested statements seems likely to create a false impression. The report's statement of the total losses attributable to the conspiracy, for instance, is balanced by Monaco's concession, found in his formal objection to the presentence report, that " [t]he losses, if any, occasioned by [his] conduct are set forth in detail in other portions of the presentence report and the Government's Sentencing Memorandum." Further, the report makes clear that Gregory Monaco split the money gleaned from his illegal activity with other codefendants rather than keeping the full amount for himself. Finally, since reliable evidence exists to support an inference that Monaco ordered that certain properties not be repaired with knowledge that they were being used to secure loans, any conclusion to that effect reached by the district court would not have been unwarranted.

Monaco's allegations are insufficient to require an evidentiary hearing on these matters. Thus, the district court did not abuse its discretion by declining to hold such a hearing.

2. Alleged Inaccuracies Concerning Overvaluation Charges

Monaco's second category of alleged errors involves the accuracy of certain statements that implicate him in two separate schemes to overvalue property held in his name. In regards to the first property, Monaco claims that there is no proof that it was, in fact, overvalued. He further complains that, since it has not been established that he was involved in preparing the allegedly false prospectus used to obtain loans secured by the property, all references to that prospectus should have been excised from the presentence report. Both of these arguments lack merit.

The Government presented reliable evidence upon which a finding of overvaluation could be based. In addition, the Government presented credible evidence from which the district court could reasonably have inferred that Monaco knew of and had responsibility to correct the inflated valuation memorialized by the prospectus. See United States v. Stewart, 799 F.2d 580, 582 (9th Cir. 1986) (sentencing court entitled to draw reasonable inferences from evidence). Monaco's unsupported denial of knowledge and responsibility and his unsubstantiated claim that no overvaluation occurred are simply insufficient to undermine the reliability of the Government's evidence to the contrary.

Monaco's attack on a statement detailing his involvement in a second scheme to overvalue property is similarly groundless. Specifically, Monaco challenges the statement that a document he prepared that inflated the value of this second property "was used in the preparation of three conflicting prospectuses, all of which further overvalued the property." Monaco wanted the report to reflect that he had not prepared the prospectuses and that the prospectuses inflated the value beyond the inflated value he had already documented. The presentence report does not state that Monaco prepared the prospectuses. In any event, authorship of the prospectuses is irrelevant since Monaco conceded that he helped prepare the fraudulent document on which the prospectuses were based.

Because reliable evidence was offered to support all of the statements that Monaco challenges as misrepresenting his involvement in these overvaluation schemes, the district court did not abuse its discretion in declining to hold an evidentiary hearing. See Monaco, 852 F.2d at 1149.

Monaco's final allegation of error is based upon his objection to inclusion in the presentence report of a summary of Samuel Monaco's affidavit on the ground that he thereby was denied confrontation and cross-examination rights. It is clearly established, however, that a district court properly may rely on hearsay information at sentencing. See United States v. Wondrack, 578 F.2d 808, 809 (9th Cir. 1978). Due process does not require that a defendant be afforded confrontation of cross-examination rights in this context. See Williams v. New York, 337 U.S. 241 (1949). Further an argument can be made that the challenged affidavit was not even hearsay. The district court made clear that it found Samuel Monaco's statements relevant not for their veracity, but rather as evidence of the "falling out among thieves" that took place after the arrest of Monaco and his co-conspirators. The affidavit was sufficiently relevant and sufficiently reliable to be considered by the district court in making its sentencing determination. Thus, the court did not abuse its discretion by declining to hold an evidentiary hearing on this matter.

Our review of Monaco's specific claims of error makes clear that his general attack on the sufficiency of the district court's findings under Fed. R. Crim. P. 32(c) (3) (D) must also fail. Rule 32 requires a district court faced with a challenge to a presentence report to state for the record either that it finds each challenged statement accurate or that it did not rely on the statement in making its sentencing decision. See United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985). This standard was clearly met by the district judge in this case. Far from making cursory findings, the court often gave lengthy explanations for its rulings and made, in addition, a number of general observations intended to apply to more than one objection. Thus, there was no violation of Rule 32.

The district court's findings were sufficient under Rule 32, and its refusal to grant Monaco an evidentiary hearing was not an abuse of discretion. The judgment and sentence are therefore AFFIRMED. The Government's motion for immediate issuance of the mandate is DENIED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

It does not appear that Monaco expressly requested an evidentiary hearing. Monaco concedes that his trial counsel "may not in the most explicit sense have uttered the magic words," but he maintains that, throughout the proceedings, his counsel "indicated he needed an evidentiary hearing." Absent exceptional circumstances, this court will not consider issues raised for the first time on appeal. See, e.g., United States v. Edwards, 800 F.2d 878, 884 (9th Cir. 1986). In the present case, however, we need not decide whether Monaco adequately requested an evidentiary hearing because, even assuming that he did, his contention that the district court was required to hold such a hearing lacks merit