Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Joel H. FISCH, Defendant-Appellant.

No. 88-5376.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1989.Decided Feb. 16, 1990.



Defendant-appellant Fisch appeals the judgment and sentence entered against him on two counts of mail fraud under 18 U.S.C. § 1341 and one count of conspiracy to defraud the United States under 18 U.S.C. § 371. Fisch had pleaded guilty to these offenses pursuant to a plea agreement with the government; his claim on appeal is that the government breached a material term of the plea agreement by failing to notify the district court of all instances of cooperation by both his son Todd and himself on the occasions of both Todd's and his own sentencing.1  Fisch additionally claims that the district court erred when it ordered that he pay restitution in the amount of $8,662,971 after denying him the opportunity to present evidence on his inability to pay restitution.

* We review de novo a defendant-appellant's claim that the government breached its plea agreement at sentencing. See United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988). Fisch argues that the government breached its plea agreement with him in three separate ways: 1) by failing to specify the instances of his son Todd's cooperation during Todd's sentencing; 2) by failing to specify the instances of Todd's cooperation during Fisch's own sentencing; and 3) by failing to specify the instances of Fisch's own cooperation during his own sentencing.

"In deciding whether a plea agreement has been broken, [this] circuit] look [s] to what the defendant reasonably understood when he entered his guilty plea. If disputed, the terms of the agreement will be determined by objective standards." United States v. Quan, 789 F.2d 711, 713 (9th Cir.) (citations omitted), cert. dismissed, 478 U.S. 1033 (1986). The relevant term in Fisch's plea agreement, as expressed in a letter to Fisch from the United States Attorney confirming the oral agreement between the Fisch family and the government, is as follows: "The government will also make known to the court all cooperation by the Fisch's [sic] at the time of sentence." An objective interpretation of this provision would probably only require that the government detail the cooperation of each family member at his own sentencing. Since knowledge of the son's cooperation could not have been expected to spur the court to be lenient in sentencing the father, it is unlikely that Fisch intended for the government to discuss Todd's cooperation at his own sentencing. It is also not clear why Joel Fisch's own agreement would require the government to adequately explain the instances of his son's cooperation at the time of the son's sentencing, given that the government undeniably owed Todd this same duty directly. Nonetheless, the government argues that it detailed all three types of cooperation. Because we agree, we find it unnecessary to set forth an objective reading of the plea agreement.

Fisch first contends that the government failed to make known all instances of his son Todd's cooperation at Todd's sentencing. As a factual matter, he is certainly correct; we ruled so in 1988. See Fisch, 863 F.2d at 690. That decision, however, vacated Todd's sentence, remanded for resentencing, and specified that the government must specifically perform its agreement with Todd at the resentencing. In short, the district court was ordered to correct the sentence. There is thus no need to resentence Fisch on this basis. Fisch's second contention is that at his own sentencing the government failed to enumerate his son Todd's cooperation. We disagree. The prosecutor noted that Todd produced documents and offered to testify for the government in San Francisco in another trial.

Fisch's third argument is that the government failed to disclose the extent of his own cooperation at his sentencing. We disagree with this characterization as well. The government conceded that Fisch had given it leads on other investigations, and had provided evidence on co-conspirators. But in the end, the government indicated that Fisch's cooperation was neither extensive nor useful because Fisch did not concede the full extent of his guilt. Thus, the government indicated, he would be worthless as a witness in any other case. This was not a breach of the plea agreement. The government did not have an obligation to disclose Fisch's cooperation enthusiastically. See United States v. Benchimol, 471 U.S. 453 (1985) (per curiam). Moreover, Fisch himself denied his guilt at his sentencing, asserting that he pled guilty only to ensure leniency for his wife and son. Fisch's attorney also denied his client's guilt. Thus, to the extent that Fisch denied his guilt when meeting with the government, it is uncontroverted that he did not "cooperate."

The list of cooperation prepared by Fisch himself admittedly provides more details than the cooperation discussed by the government at sentencing. For instance, Fisch's own list names the people about whom he provided information to the government. The government, on the other hand, merely mentions that Fisch provided information on "co-conspirators." Additionally, Fisch's own list names the defendant against whom Todd offered to testify. Surely the Fisch decision, however, does not stand for the broad proposition that the government must tell the sentencing judge about all instances of cooperation in excruciating detail. As long as the government does not merely refer to "cooperation," it is free to either adopt the defendant's own list or specify the cooperation itself. Fisch, 863 F.2d at 690. The government in the instant case discussed the cooperation adequately.


Fisch argues that the district court erred by refusing to conduct a hearing on the question of Fisch's ability to pay restitution before ordering restitution in the amount of $8,662,971. This argument lacks merit. The Victim and Witness Protection Act ("the Act") provides that the sentencing court "shall consider" the defendant's financial resources, among other things, before ordering restitution. 18 U.S.C. § 3664(a).2  But we have held that a district court need not hold an evidentiary hearing on the issue of restitution. See United States v. Keith, 754 F.2d 1388, 1392-93 (9th Cir.), cert. denied, 474 U.S. 829 (1985). More specifically, we have held that the Act does not require the district court to make findings of fact on the defendant's ability to make restitution payments. See United States v. Cannizzaro, 871 F.2d 809, 810-11 (9th Cir. 1989). Additionally, the court need not discuss the factors it considered with the defendant on the record. United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987).

The Act appears merely to require that the defendant be given "an adequate opportunity to present his objections." Keith, 754 F.2d at 1392; see also United States v. Pomazi, 851 F.2d 244, 250 (9th Cir. 1988) (stating that "the defendant must be given the opportunity to refute the amount ordered"). Indeed, Fisch's attorney maintained at sentencing that his client had lost all of the fraudulently obtained money in question in the stock market. The transcript also reveals, however, that the judge did not find this explanation credible. The judge remained convinced "that there is money out there waiting for Mr. Fisch, if and when he's available to get it." In short, the sentencing judge obviously considered Fisch's financial status, albeit not to Fisch's liking.3 


The sentence is therefore AFFIRMED.


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


Todd Fisch had pleaded guilty to similar charges


Although the district court's judgment does not specify whether its order of restitution was grounded in this statute rather than in the Federal Probation Act, 18 U.S.C. § 3651, the fact that the judge did not grant probation sufficiently indicates that the order of restitution was not based on the Federal Probation Act. See United States v. Pomazi, 851 F.2d 244, 247 (9th Cir. 1988)


We have previously noted that even a defendant who is indigent at the time of sentencing can be compelled to make restitution; this is apparently because the Act requires that the court take the defendant's future earning potential into account in addition to his current financial status. See Keith, 754 F.2d at 1392-93. The sentencing judge below took note of Fisch's intelligence and knowledge. It is likely that he was mindful of these qualities when considering Fisch's future earning potential