Unpublished Disposition, 921 F.2d 282 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1989)

UNITED STATES of America, Plaintiff/Appellee,v.Gwendolyn JOSEPH, Defendant/Appellant.

No. 89-10612.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.Decided Dec. 18, 1990.

Before ALDISERT,*  ALARCON and BRUNETTI, Circuit Judges.


Gwendolyn Joseph appeals from the judgment of sentence entered upon her conviction by a jury on multiple counts resulting from a scheme to defraud the United States and certain contractors and subcontractors in federal construction projects. She was found guilty of one count of conspiracy and various counts of submitting false contractor bonds, making false statements to the government, mail fraud and wire fraud. She also was found guilty of aiding and abetting certain offenses and was acquitted of one count each of mail fraud and wire fraud.

Joseph presents many contentions on appeal, but her major argument is that the government made a basic change in its theory during trial to prove her culpability on the substantive counts. She argues that although she was prepared to defend the allegation that she directly participated in these offenses, she was not prepared when the government proceeded to rely also on the vicarious liability theory approved in Pinkerton v. United States, 328 U.S. 640 (1945), reh'g denied, 328 U.S. 818 (1946). Pinkerton teaches that a party to a conspiracy may be held responsible for a substantive offense committed by a co-conspirator in furtherance of the conspiracy even if that party did not participate in the substantive offense or have knowledge of it.

Joseph also argues that the trial court erred in its instructions to the jury, to wit: in instructing that she could be held culpable under the Pinkerton theory; in failing to deliver a requested instruction that she could not conspire with herself; in improperly describing corporate responsibility; and in failing to instruct that the jury must find that the crimes occurred on the exact dates alleged in the indictment. Additionally, she argues that the holding of McNally v. United States, 483 U.S. 350 (1987), precludes a mail or wire fraud conviction in her case and that the court violated the hearing requirements relating to presentence investigation matters as required by Rule 32, F.R.Crim.P.

These contentions do not persuade us; accordingly, we affirm the judgment of the district court.

Jurisdiction was proper in the trial court under 18 U.S.C. § 3231. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291. The appeal was timely filed under Rule 4(b), F.R.A.P.

The adjudicative facts emerging from this three-month trial are extensive. The evidence must be construed in favor of the verdict winner, in this case, the government. Beginning in about April 1983 and continuing until approximately February 1985, Gwendolyn Joseph purportedly conspired with three individuals, Wesley Plummer, Alonzo Campbell, and Eddie Dixon, and three corporations, G. Joseph Insurance, Inc., Contractor Surety Bonding Company, Inc., and Transamerica Developers, Inc., to defraud the United States, contractors and subcontractors by submitting false bonding documents for eight federal contracts. Joseph tendered these falsified documents to the United States Forest Service (one contract), Soil Conservation Service (one contract), Department of Transportation (one contract), Veterans Administration (two contracts), and the Corps of Engineers (three contracts).

On November 8, 1988, she, Plummer, Campbell, Dixon and the three corporations were indicted in 24 counts of a 25-count indictment for participating in the scheme. The 24 counts alleged one count of conspiracy; eight counts of submitting false contractor's bonds in violation of 18 U.S.C. § 494; four counts of making false statements to the government in violation of 18 U.S.C. § 1001; four counts of mail fraud in violation of 18 U.S.C. § 1341; and seven counts of wire fraud in violation of 18 U.S.C. § 1343. The indictment also alleged aiding and abetting in Counts 2 through 24 in violation of 18 U.S.C. § 2. The final count (Count 25) alleged a conspiracy between two additional defendants, Charles R. Welshiemer and Dolores Welshiemer, who were not named in the other counts.

It was the government's theory that Joseph, individually, and through G. Joseph Insurance, Inc., assisted by Plummer, Dixon and Campbell, represented herself and her company to contractors as bonding brokers who could procure and submit proper bonding for federal government contracts as required under the Miller Act, 40 U.S.C. § 270a. The Act requires:

(a) Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as "contractor":

(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.

(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.

Id. A government affirmative action program requires agencies to allocate a portion of their contracts to certain minority contractors designated as disadvantaged or "Eight-A" contractors. Joseph, a young, black female, apparently was concerned with the betterment of minority groups and sought to help them acquire government contracts. She advertised extensively, explaining that she could obtain the necessary performance bonds. Many minority contractors, including American Construction, R & E Electronics and CPL Enterprises, responded to Joseph's advertising and paid her fees for procuring, preparing and submitting bonds for the federal government contracts they wished to obtain.

Joseph's method of bonding was to arrange for individual sureties who would guarantee the performance of the contract and the payment of the subcontractors. Joseph would submit to the government an affidavit entitled "Affidavit of Individual Surety" describing the true assets, liabilities and net worth of the individual surety. The individual's net worth had to be sufficient to assure the payment and performance of the contract, and the contents of the affidavit had to be certified by either a responsible officer of a financial institution or a designated federal official.

The government argued that the performance and payment bonds and affidavits of individual sureties submitted by Joseph to the Forest Service, Soil Conservation Service, Department of Transportation, Veterans Administration, and Corps of Engineers were false or forged. Contracting officers for the Soil Conservation Service, Department of Transportation, and Veterans Administration (Fayetteville, North Carolina) contracts and two Corps of Engineers contracts detected the fraud before or shortly after the award of the contract, thereby minimizing the government's loss. Contractors for these projects, American Construction, R & E Electronics and CPL Enterprises, suffered losses because they had purchased false bonds and then either lost the government contracts or paid for additional bonds without recouping the cost of the false bonds.

Contracting officers for the Veterans Administration (Richmond, Virginia) and the 1983 Corps of Engineers contracts did not detect the bond fraud until after the contracts had been completed. The Forest Service contract, however, resulted in a significant loss to the government because the fraud was not discovered until after the contractor had begun performance. When the contractor failed to complete performance, the government lost approximately $340,000 in reprocurement costs and other costs associated with the Forest Service contract default. The numerous subcontractors lost over $500,000 because they were unable to recover on the worthless bonds.

Approximately 80 witnesses, including co-defendants Plummer, Dixon and Campbell, who had pleaded guilty, testified on the government's behalf. The testimony revealed that Joseph perpetrated the fraud through her co-defendants and other business associates. Co-defendant Campbell, who was Joseph's boyfriend, was a director of defendant G. Joseph Insurance, Inc. and a signatory on the corporate accounts. He cashed checks for Joseph and G. Joseph Insurance in furtherance of the conspiracy. As an officer of the corporation and as an individual, he acted as a surety for the Forest Service, Veterans Administration and 1983 Corps of Engineers contracts, falsely representing his assets, liabilities and net worth. Campbell testified that Joseph told him, " [We] don't care if [the sureties are] bums ... make them look like millionaires." Appellant's Brief at 8.

Beginning in 1983, co-defendant Dixon worked as an employee for Joseph, acting as a surety on the 1983 Corps of Engineers contract and as a certifier for the false Campbell affidavit on the Forest Service contract. Co-defendant Plummer, who went into business with Joseph in approximately 1983, prepared false surety affidavits for the Soil Conservation and Veterans Administration contracts.

Joseph also used many individual sureties without their authorization, and some of these individuals suffered personal losses as a result of the fraud. Others had agreed to act as sureties but did not agree to the misrepresentations Joseph made on the bonding documents. Addison Beverly was the purported certifier of the affidavits of individual surety that Joseph used for many of the contracts. Although Beverly had assisted Joseph in certain financial projects, he never had agreed to be a certifier for any of the sureties. His name was forged on all the affidavits.

Some of the contractors testified that they had paid Joseph approximately $5,000 for the bonds for the 1984 Corps of Engineers contracts. They stated that Joseph did not compensate them for the loss of the bonds and that she even obtained an additional $1,500 from them to pay for an attorney to file a protest. Another contractor for the Veterans Administration contracts testified that efforts to recover money from Joseph for the fraudulent bonds were unsuccessful.

At the conclusion of the jury trial, which commenced on June 12, 1989, and ended on September 12, 1989, Joseph and G. Joseph Insurance, Inc. were found guilty of 22 of the 24 counts charged. They were acquitted of one count of mail fraud (Count 16) and one count of wire fraud (Count 18). Contractors Surety Bonding Company, Inc., Joseph's other corporation, was acquitted of all charges.

Joseph's sentencing, originally scheduled for October 30, 1989, was continued after her counsel objected to the presentence report. The district court ordered that a hearing be held to receive testimony regarding some of the objections, especially those involving the amount of the victims' losses. Appellant's counsel, however, agreed to resolve any factual contraventions by affidavit and by argument at the sentencing rescheduled for November 20, 1989. Accordingly, although offered a hearing as contemplated by Rule 32, Joseph's counsel decided to waive the evidentiary hearing and to proceed by affidavits.

The government then filed supplemental sentencing memoranda and affidavits regarding the losses suffered by the government, contractors and subcontractors, to which Joseph's counsel filed a response. On November 20, 1989, before Joseph's sentencing, the district court held a hearing to consider the objections to the presentence report. The court overruled all the objections.

Following the hearing, the court sentenced Joseph to five years on Count 1 (conspiracy); four years consecutive on Counts 2, 3, 4, 7, 8, 10, 11 and 13; and five years on Counts 5, 6, 9, 12, 14, 15, 17 and 19-24, which was suspended, and Joseph was sentenced to a fine and five years probation following release from custody. As a condition of probation, Joseph must pay total restitution of $119,820.84 to the government, contractors and subcontractors. Tr. at 22-25 (11/20/89).

Joseph appeals from the judgment of conviction and sentence entered on November 20, 1989.

A claim of error in a jury instruction is reviewed "by looking to 'the adequacy of the entire charge ... in the context of the whole trial.' " United States v. Mundi, 892 F.2d 817, 818 (9th Cir. 1989) (quoting United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir. 1984)). However, when no objection to the jury instruction is made at the time of trial, we employ a plain error standard of review. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989). Plain error is found only in exceptional circumstances. Id. Questions of law, including the sufficiency of an indictment, are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984); United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982), cert. denied, 460 U.S. 1086 (1983) (sufficiency of indictment).

We first address Joseph's principal argument that the government changed its theory of her culpability by proceeding on the vicarious responsibility concept that a conspirator is liable for the substantive offenses committed by co-conspirators in the furtherance of the conspiracy. We are not persuaded by this argument. The government proceeded precisely within the perimeters of the conspiracy and substantive offense counts set forth in the indictments. When Joseph was indicted for the crime of conspiracy, as well as the substantive counts, she was put on notice that the government was entitled to proceed on the theory that a party to a conspiracy may be responsible for a substantive offense committed by a co-conspirator in furtherance of the conspiracy even if that party did not participate in the substantive offense or have knowledge of it. Vicarious culpability for substantive offenses is one of the prices one pays for participating in a conspiracy.

Although the government primarily demonstrated Joseph's personal participation in the substantive offenses, it was not precluded from relying on the Pinkerton theory as well. There was no legal impediment to proceeding on the twin theories. Because Joseph also was indicted and tried on the conspiracy count, she was not denied any rights as a defendant by being subject to the vicarious culpability theory.

Her related argument that the court erred in its Pinkerton instruction also fails. The court instructed the jury as follows:

If you find that defendant Gwendolyn Joseph is guilty of conspiracy as charged in Count 1, you may also find that she is guilty of a substantive offense as charged in any other count of the indictment, provided that you find that the essential elements of that count, as defined in these instructions, have been established beyond a reasonable doubt:

First, that the offense defined in the substantive count was committed pursuant to the conspiracy; and [s]econd, that she was a member of the conspiracy at the time the substantive offense was committed. Under the conditions just defined, a defendant may be found guilty of a substantive count even though that defendant did not participate in the acts constituting the offense as defined in the substantive count. The reason for this is that a conspirator committing a substantive offense pursuant to a conspiracy is held to be the agent of the other conspirators.

Tr. at 201 (09/09/89). In addition to her contention that a vicarious culpability instruction was improper, given the government's theory of prosecution, Joseph argues that because she was charged with participatory "aiding and abetting" under 18 U.S.C. § 2, it was improper to instruct the jury on vicarious criminal responsibility. She was charged with three distinct groupings of counts: conspiracy, substantive offenses and aiding and abetting the commission of the substantive offenses. All three types of conduct are prohibited by the specific statutes authorizing the appropriate indictments. Joseph seems to argue that proof of vicarious culpability through acts of co-conspirators is somehow inconsistent with proof of actively aiding and abetting the commission of a substantive offense. We do not accept this contention. Out of the same operative facts may come a violation of more than one federal statute outlawing specific conduct. We now turn to the Pinkerton instruction.

This court has held "that when the elements of vicarious coconspirator liability as defined by Pinkerton ... are present, a defendant is guilty" of a substantive offense. United States v. Kato, 878 F.2d 267, 270 (9th Cir. 1989); see E. Devitt & C. Blackmar, Federal Jury Practice and Instructions Sec. 27.17 (1977 & Supp.1990).

Because Joseph did not object to the Pinkerton instruction at trial, this court may reverse only for "plain error." Plain error is " 'highly prejudicial error affecting substantial rights.' " United States v. Krasn, 614 F.2d 1229, 1235 (9th Cir. 1980) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)). No evidence of plain error exists here. The instruction was not erroneous. Under the teachings of Pinkerton, a defendant may be convicted of substantive offenses committed by a co-conspirator even if he or she did not participate in the offenses or aid and abet. See Pinkerton, 328 U.S. at 646-47.

Furthermore, the government's case against Joseph was not based solely upon vicarious responsibility. The evidence was sufficient to establish that Joseph had knowledge of and directly participated in the substantive offenses, or that she had aided and abetted in their completion. It was undisputed that Joseph physically submitted false bonding documents to the Soil Conservation Service as alleged in Counts 2 through 7, and that she submitted letters and telegrams concerning the false bonding documents sent to the Veterans Administration as alleged in Counts 8 through 10. Joseph also was involved in submitting the false documents to the Veterans Administration as alleged in Counts 11 through 13, and she participated directly in the activities alleged in the mail and wire fraud counts (Counts 14, 15, 17, 19, 20, 21, 22, 24).

Joseph next argues that the district court violated Rule 30, F.R.Crim.P. by failing to instruct the jury that Joseph, as an officer or director of her corporations, could not conspire with herself. Although the district court agreed to so instruct the jury at the Rule 30 pre-charge conference on September 9, 1989, the court neglected to include it in its jury instructions.

Under Rule 30, " [t]he court shall inform counsel of its proposed action upon [requested instructions] prior to their arguments to the jury." In this case, the court agreed to the requested instruction but failed to give it to the jury. However, during the post-instruction conference with the judge, prior to the jury's retiring, defense counsel failed to draw the court's attention to the omission. See Tr. at 220-32 (09/09/89). At the end of the conference, the trial judge specifically asked defense counsel if he had anything else. Counsel responded, "No, nothing." Id. at 230; see United States v. Espinoza, 827 F.2d 604, 613 (9th Cir. 1987) (" [F]ailure to lodge a specific objection on the record after the court charges the jury is clearly a 'risky business.' "), cert. denied, 485 U.S. 968 (1988). The court then permitted the jury to take copies of the instructions into the deliberation room.

Even if this omission was error, the defendant was not prejudiced. At five different times during the instructions the trial judge instructed that a conspiracy must include two or more persons:

Page Statement

193 "If two or more persons conspire either to commit any offense . . . ."

194 "A conspiracy is a kind of criminal partnership--an agreement of two or

more persons to do something unlawful . . . ."

196 "A conspiracy is a combination of two or more persons, by concerted

action, to accomplish some unlawful purpose . . . ."

198 "... and that two or more persons, including one or more of the accused,

were knowingly members of the conspiracy . . . ."

200 "What you must do is determine whether the conspiracy charged in the

indictment existed between two or more conspirators."

Tr. at 193-94, 196, 198, 200 (09/09/89) (emphasis added). Moreover, defense counsel stated during summation:

Conspiracy is an agreement. It's a combination of two or more people acting in concert in order to violate the law. If you don't have but one person, you can't have a conspiracy. You must have more than one. And if you remove Plummer, and if you remove Dixon and if you remove Campbell, you can't have a conspiracy. Because Ms. Joseph can't conspire by herself. It's a legal impossibility.

Now the corporations are named as defendants under the conspiracy. But the corporation can only act through an individual. And if Ms. Joseph was that individual, again, she can't conspire with herself. So, unless and until you find ... beyond a reasonable doubt that Plummer entered into an agreement with Ms. Joseph to violate the law; that Dixon entered into an agreement with Ms. Joseph to violate the law; and that Alonzo Campbell entered into an agreement with Ms. Joseph to violate the law, then you must acquit Ms. Joseph. Because there's no conspiracy.

Tr. at 117-18 (09/09/89) (emphasis added). The Assistant United States Attorney also remarked during closing that the "first element of the conspiracy ... is that there was an agreement by at least two people to do something illegal." Tr. at 213 (09/08/89).

Concededly, the prosecutor also stated during closing, "Now in this case you have all sorts of people to choose from. You can choose from certainly Gwendolyn Joseph. You can choose from any of her entities, G. Joseph Insurance and the other company entities whom she represented." Id. at 213. Standing alone that may have been questionable argument. However, just twelve lines later, the prosecutor stated, "So you'd have to find Gwendolyn Joseph and her companies, combined with some other person...." Id. at 214 (emphasis added). Taking these two statements together, just one paragraph apart, we conclude that the argument was not improper.

Given the specificity of the instructions and that defense counsel was permitted to argue that Ms. Joseph could not conspire with herself, we will not rule as a matter of law that the jury convicted Joseph on a theory that she conspired with herself. The jury easily could have deduced from the evidence that Joseph conspired with Campbell, Dixon and Plummer individually or in their capacity as agents of her corporation. Accordingly, we conclude that the district court's failure to give the requested instruction did not constitute plain error. The instructions, viewed as a whole, clearly informed the jury that a conspiracy is an agreement between two or more persons.

Joseph next presents the obverse side of the same argument. She contends that the mere possibility that the jury may have determined that she conspired with herself requires reversal. For the reasons outlined in Part V we reject this argument. When reviewing a claim of error relating to jury instructions, an appellate court views the instructions in the context of the overall charge to determine if they "fairly and adequately cover the issues presented." United States v. Alcantar, 832 F.2d 1175, 1178 (9th Cir. 1987). The jury instructions in this case adequately informed the jury that a conspiracy is a combination of two or more persons to accomplish some unlawful purpose.

Joseph next argues that the instruction regarding corporate liability constitutes reversible error because it did not include the requirement that the jury find that the agent of the corporation must have acted with the purpose of benefiting the corporation. The court instructed the jury:

A corporation of course may act only through natural persons who are known as its agents. In general, any agent or representative of a corporation possessing adequate authority may bind the corporation by that person's acts, declarations and omissions. In order to find a corporation defendant guilty, you must find that all of the essential elements of the offense, as set out in these instructions, are present as to the corporation, in the form of acts or omissions of agents of the corporation within their authority. The scope of authority of these agents is a question of fact for you to decide just as other fact questions in the case.

Tr. at 192-93 (09/09/89) (emphasis added).

Once again, because counsel did not object to the instruction at trial, this court may reverse only for "plain error." Although the instruction does not specifically state that the agent's act must benefit the corporation, the instruction is patterned after the instructions we approved in United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004 (9th Cir. 1972) (" [A] corporation is liable for acts of its agents within the scope of their authority...."), cert. denied, 409 U.S. 1125 (1973). Because this is an acceptable instruction, we do not conclude that its use at trial constituted plain error.

Joseph also contends that the judgment must be reversed because the jury instructions failed to require that the jury find that the alleged mailings, wire communications and falsitites occurred on the exact dates alleged in the indictment. The district court instructed the jury as follows:

You will note the indictment charges that the offense was committed "on or about" a certain date. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

Tr. at 184 (09/09/89). Because Joseph did not object to the instruction at trial, we may not reverse unless the instruction evidences "plain error."

The instruction given to the jury is the suggested jury instruction set forth in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions Sec. 13.05, at 353 (3d ed. 1977), which this court impliedly approved in United States v. Kerr, 439 F.2d 689, 690 (9th Cir. 1971) (per curiam) (" [P]roof of the commission of the act charged any day before the indictment, and within the statute of limitations, will be sufficient.") (footnote omitted), and United States v. Marsh, 451 F.2d 219, 220 (9th Cir. 1971) (per curiam). Accordingly, the instruction was not improper and no plain error occurred.

Relying on McNally v. United States, 483 U.S. 350 (1987), Joseph next argues that because she received monies or property from the contractors and not from the government, she cannot be convicted of mail and wire fraud pursuant to 18 U.S.C. §§ 1341, 1343. The mail fraud statute prohibits the use of the United States mails to further "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses." Id. Sec. 1341. The wire fraud statute prohibits the use of interstate wire, radio or television communication for such purposes. Id. Sec. 1343.

In McNally, the defendants were charged with violating the mail fraud statute by devising a scheme to defraud the Commonwealth of Kentucky's citizens and government of their "intangible right" to have the Commonwealth's affairs conducted honestly. McNally, 483 U.S. at 352. The Supreme Court held that the language and legislative history of the mail fraud statute demonstrates that it "clearly protects property rights, but does not refer to the intangible right of the citizenry to good government." Id. at 346 (emphasis added); see United States v. Oren, 893 F.2d 1057, 1061 (9th Cir. 1990) ("The contribution of McNally to mail fraud jurisprudence ... was to establish that there was no property right ... in 'honest and impartial government.' ").

We recognize that Congress has superseded the strictures imposed by McNally by enacting 18 U.S.C. § 1346, effective November 18, 1988, which provides: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." This new section effectively overrules McNally by eliminating the requirement of property loss. However, Joseph was indicted ten days before passage of this statute. We determined in United States v. Telink, Inc., 910 F.2d 598, 601 n. 2 (9th Cir. 1990), that section 1346 does not apply to conduct occurring before November 18, 1988, given the ex post facto clause of the Constitution. Thus, the teachings of McNally, and not the new section 1346, apply to Joseph's case.

However, McNally does not support Joseph's contention. The indictment alleged that she schemed to defraud the government, contractors and subcontractors of property rights--not "intangible rights." For example, the indictment charged that the government had lost approximately $340,000 in reprocurement costs regarding the Forest Service contract default, and that the contractors and subcontractors had lost thousands of dollars through Joseph's fraud. These allegations clearly bring Joseph's activities within sections 1341 and 1343. We reject Joseph's argument that McNally precludes her conviction of mail and wire fraud.

Joseph argues finally that the district court's failure to hold a hearing on her objections to paragraphs 16, 17, 18 and 19 of the presentence investigation report violated Rule 32, F.R.Crim.P. and that these proceedings should be remanded for resentencing. Rule 32(c) (3) (A) and (D) provides, in pertinent part:

(A) ... The court shall afford the defendant and the defendant's counsel an opportunity to comment on the [presentence] report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.



* * *

(D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.

(emphasis added).

On October 20, 1989, the original sentencing date, Joseph's counsel stated on the record the grounds for her objections to paragraphs 16-19 of the presentence report. Tr. at 4-8 (10/30/89). After overruling Joseph's objections to paragraphs 17 and 18 of the report, the district court offered defense counsel an opportunity for a hearing to present testimony supporting the objections to paragraphs 16 and 19. Id. at 9-12. Joseph's counsel elected, however, not to proceed into a hearing, choosing instead to resolve the matter through affidavits and argument at the November 20, 1989, sentencing hearing. Id. at 13-14.

The government then filed a supplemental sentencing memorandum with accompanying affidavits on November 6, 1989, and a follow-up memorandum on November 15. On November 17, 1989, defense counsel filed a responsive memorandum. At the November 20 sentencing, the court made specific findings on Joseph's remaining objections to paragraphs 16 and 19. Tr. at 2, 8 (11/20/89).

Joseph correctly states that when a district court neglects to make the requisite Rule 32 findings at the time of sentencing, the sentence must be vacated. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). The record reveals, however, that the district court made the requisite findings as to Joseph's objections at either the October 30 or November 20 hearings. Moreover, the district court offered Joseph a hearing on two of her objections, but she elected instead to resolve the objections through affidavits and argument at sentencing.

We have considered all the contentions presented by the appellant. The judgment of the district court is AFFIRMED.


Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3