Unpublished Disposition, 940 F.2d 670 (9th Cir. 1990)

No. 90-10324.

United States Court of Appeals, Ninth Circuit.

Before CHOY and SNEED, Circuit Judges, and KELLEHER, Senior District Judge.^** 

MEMORANDUM^*** 

Franklyn G. Perry, a federal prisoner proceeding pro se and in forma pauperis, appeals from the district court's May 16, 1990 order denying Perry's motion to reduce his sentence under Federal Rule of Criminal Procedure 35 (as applied to offenses committed prior to November 1, 1987).

We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

On January 8, 1985, a jury convicted Perry on six counts of wire fraud under 18 U.S.C. § 1343, four counts of mail fraud under 18 U.S.C. § 1341, two counts of attempted tax evasion under 26 U.S.C. § 7201, and obstruction of criminal investigation under 18 U.S.C. § 1510. Perry had been charged with operating a Ponzi scheme which allegedly defrauded various investors of some $124 million dollars. On February 25, 1985, Judge Howard D. McKibben sentenced Perry to twenty-five years in prison, fined him $30,000, and ordered him to make restitution to various victims. On September 22, 1988, in United States v. Perry, 857 F.2d 1346 (9th Cir. 1988), we affirmed the judgment of conviction.

On March 13, 1989, Perry filed a motion to reduce his sentence pursuant to Federal Rules of Criminal Procedure 35(a) and (b). On February 9, 1990, Judge McKibben disqualified himself and Perry's case was reassigned to Judge Philip M. Pro, who denied Perry's motion.

ANALYSIS

I. Rule 35 Motions to Correct or Reduce Sentence

A district court has broad discretion regarding what evidence to consider for sentencing purposes. We will not reverse unless we find an abuse of discretion. Reliance on materially false or unreliable information constitutes an abuse of discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). Due process requires that the district court impose an individualized sentence, commensurate with each defendant's particular conduct and circumstances, rather than one based generally on the type of crime for which the defendant has been convicted. United States v. Barker, 771 F.2d 1362, 1365-67 (9th Cir. 1985).

We find that the district court did not abuse its discretion by concluding that there was sufficient and reliable evidence that Perry had defrauded investors of a large sum of money, had secreted a substantial portion thereof, and had refused to aid in its recovery. Nor did the district court abuse its discretion by denying Perry an evidentiary hearing. United States v. Eastman, 743 F.2d 1322, 1324 (9th Cir. 1984), amended, 758 F.2d 1315, 1317 (1985). Where, as here, the district court afforded Perry a full and fair opportunity to challenge the information in his pre-sentence report, Perry waived any objection to the accuracy of the information by failing to comment at the appropriate time. United States v. Leonard, 589 F.2d 470, 471-72 (9th Cir. 1979). Furthermore, Perry offered no proof that in sentencing him the district court relied on false or unreliable information. Mere allegations will not suffice. United States v. Garcia, 693 F.2d 412, 415 (5th Cir. 1982).

Finally, Perry alleges, without offering any proof, that prior to imposing sentence Judge McKibben maintained ex parte contacts with agents of the FBI regarding a plot by Perry to assassinate the judge and government attorneys. Perry claims to possess documents which substantiate his allegations, but he has not produced them for our review. The Government and Judge McKibben deny engaging in any ex parte contacts prior to imposition of Perry's sentence.

In this case, the probation officer submitted a pre-sentence report for in camera consideration because it contained information regarding Perry's continuing involvement in criminal activity. The district court did not rely for sentencing purposes upon the information submitted to it in camera. It was not obligated therefore to furnish Perry with an oral or written summary of facts pertaining to his continued involvement in criminal activities. See United States v. Doe, 734 F.2d 406, 407 (9th Cir. 1984) (per curiam); Fed.R.Crim.Pro. 32(c) (3) (A) & 32(c) (3) (B).

Perry contested the allegations, contained in the pre-sentence report and advanced at trial, that he had defrauded investors of some $124 million dollars and had hidden approximately $40 million of that amount. We agree with the district court that the sentencing court's comments at the time of sentencing constituted findings of fact based on evidence properly adduced at trial. It was harmless error not to append a written record of this determination to the copies of the pre-sentence report forwarded to the Bureau of Prisons and to the Parole Commission. United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir. 1990) (en banc). The district court properly ordered that a record of the sentencing court's findings as to the hidden sum of money be appended to the pre-sentence report. Fed.R.Crim.Pro. 32(c) (3) (D).

We agree with the district court that the sentencing court's introduction of the polygraph results during Perry's special dangerous offender hearing did not constitute prejudicial error. First, Perry's counsel stipulated to introduction of the evidence. Second, Judge McKibben decided not to sentence Perry as a special dangerous offender. Finally, Perry did have the benefit of counsel at the hearing wherein he prevailed.

AFFIRMED.