Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

No. 88-5222.

United States Court of Appeals, Ninth Circuit.

Before NELSON, BOOCHEVER, Circuit Judges, and BROWNING, District Judge.^** 

MEMORANDUM^*** 

Defendant-appellant appeals her conviction and sentence. After a six week jury trial appellant was convicted of twenty counts of wire fraud, eleven counts of mail fraud, twenty-two counts of interstate transportation of property taken by fraud, three counts of inducing interstate travel to commit fraud, two counts of income tax evasion, and two counts of making false statements on Internal Revenue Service documents. The district judge imposed a sentence of: concurrent five year terms of imprisonment on fifty-four counts; concurrent ten year terms of imprisonment on three counts; five years probation on four counts; payment of $7,972,893.00 restitution arising from the fraud counts; duty to pay all back taxes and costs of prosecution, $20,890.46. Appellant appeals her conviction based on an allegedly erroneous jury instruction. Additionally, she appeals her sentence.

Appellant first asserts that the jury was not properly instructed regarding her intent to defraud. The record indicates that this issue was mistakenly raised on appeal since the district judge gave appellant's proposed instruction on intent to the jury. Where a defendant proposed the instruction which the court ultimately used, review is barred under the invited error doctrine. United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986), cert. denied, 479 U.S. 1017 (1986).

Appellant asserts that the district judge abused his discretion in sentencing. She argues that the judge abused his discretion (1) in choosing under which statute to impose sentence and (2) in imposing a duty to make restitution.

Appellant argues that the district judge should have sentenced her pursuant to 18 U.S.C. § 4205(b) (2) (1985), instead of 18 U.S.C. § 4205(a) (1985). Under the former, she may be paroled whenever the Commission determines; under the latter, only after serving one third of her sentence. She claims that since she is a wife and mother, has been active in community affairs, and has no prior criminal record she should have been sentenced under Sec. 4205(b) (2) (1985).

When a sentence is within the statutory limits, it will be reviewed only for an abuse of discretion. United States v. Monaco, 852 F.2d 1143, 1151 (9th Cir. 1988). The punishment should fit both the crime and the criminal and " [i]n each case, a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a category of crime." United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985).

If proper discretion has been exercised by the district judge, the sentence is not ordinarily reviewable unless constitutional concerns are present. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). A review of the record should be conducted to ascertain whether the sentencing court has refused to exercise its discretion, or has exceeded the bounds of its discretion. Barker, 771 F.2d at 1364; accord, United States v. Branco, 798 F.2d 1302, 1305 (9th Cir. 1986).

A review of the record indicates that the district judge did not abuse his discretion. At the time of sentencing the judge affirmatively stated that he had read the presentence report, had read many letters from friends and acquaintances, and had considered the arguments of counsel for both sides. He said he had reviewed some 100 pages of notes that he made during the trial. He weighed the defendant's good and bad conduct, and considered a number of factors including punishment, rehabilitation, deterrence, the plight of defendant's family and the effect of the crimes. The judge then imposed a sentence that was within the legal limits and followed the recommendation of the probation officer. Thus, it was not an abuse of discretion to impose the sentence pursuant to 18 U.S.C. § 4205(a) (1985) instead of Sec. 4205(b) (2) (1985).

An order of restitution is part of the sentence and reviewed on appeal for abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir. 1986). Appellant asserts that the Court abused its discretion in ordering $7,972,893 in restitution. We disagree.

The Victim and Witness Protection Act of 1982 [hereinafter Act] gives federal courts the ability to order restitution to the victim of a crime as a part of a criminal sentence. Pub. L. No. 97-291, 96 Stat. 1248 (codified as amended at 18 U.S.C. §§ 3663 & 3664 (1985). Under the Act, joint and several liability for the entire actual loss sustained by a victim may be imposed on each defendant in a case. United States v. Cauwenberghe, 827 F.2d 424, 435 (9th Cir. 1987), cert. denied, 108 S. Ct. 773 (1978). When a defendant who is ordered to pay restitution is placed on probation, the payment of restitution is a condition of probation, and failure to pay can result in its revocation. S.Rep. No. 98-225, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.CODE CONG. & ADMIN.NEWS. 3269.

Recognizing that indigency may be temporary, the Act does not prohibit a sentencing court from imposing a restitutionary sentence upon a defendant who is indigent at the time of sentencing. United States v. Keith, 754 F.2d 1388, 1393 (9th Cir. 1985), cert. denied, 474 U.S. 829, 106 S. Ct. 93, 88 L. Ed. 2d 76 (1985). Although the sentencing court must consider the defendant's financial resources, her financial needs, the earning ability of the defendant and her dependents, the amount of the loss sustained by the victim, and any other factors the court deems appropriate, 18 U.S.C. § 3664 (1985), "it is not required to discuss the factors with the defendant on the record." United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987). Similarly, the sentencing court is not required to hold an evidentiary hearing on the issue of restitution, although it may allow a defendant to introduce evidence relating to any factual inaccuracy in the presentence report. United States v. Keith, 754 F.2d 1388, 1392-93 (9th Cir. 1985). It is the defendant's responsibility to set forth financial information regarding her ability to pay and the appropriateness of the amount. 18 U.S.C. § 3664(d) (1985).

It is undisputed that $7,972,893 is the aggregate amount of loss that was sustained by appellant's victims. The presentence report indicates that appellant withheld information regarding her financial status and ability to pay. The record also indicates that appellant's bankruptcy is a result of claims made against her by victims and that she is not otherwise indigent.

Although appellant concedes that bankruptcy is not a bar to an order of restitution, United States v. Roberts, 783 F.2d 767, 771 (9th Cir. 1986), she states the burden is impossible. The record reflects that the appellant has refused to divulge financial information. The undisclosed information might have shown appellant's inability to pay, a factor the court may consider when ordering restitution. 18 U.S.C. § 3664(a) (1985). Such information might have led the district judge to a different conclusion. Importantly, the appellant may, at a later time, divulge the information and seek relief from the order. Thus, we hold that where a defendant has withheld financial information from the sentencing judge, it is not an abuse of discretion to order restitution.

Appellant has shown no reversible error relating to her conviction or sentence. The record reflects that the trial judge has sentenced her within proper discretion. Accordingly, the conviction and sentence imposed by the district court are AFFIRMED.