Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DANIEL R. DRAKE Assistant U.S. Attorney Arizona State Bar No. 003781 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1018-PHX-JAT Plaintiff, v. Bella Ben-Henry, Defendant. The United States hereby responds to Defendant Bella Ben-Henry's Motion to Bifurcate RESPONSE TO MOTION TO BIFURCATE AND FOR JURY DETERMINATION OF THE FACTORS THAT "ENHANCE" THE DEFENDANT'S SENTENCE

15 and for Jury Determination of the Factors That "Enhance" the Defendant's Sentence. Under 16 United States v. Booker, 125 S.Ct. 738 (2005), a jury is not required to make those 17 determinations because of the advisory nature of the Sentencing Guidelines. Under United th 18 States v. Ameline, 409 F.3d 1073, at 1085-86 (9 Cir. 2005)(en banc), the standard of proof is 19 by a preponderance of the evidence. Respectfully submitted this 5th day of September, 2005. 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

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MEMORANDUM Bifurcation Is Not Required, Nor Must a Sentencing Jury Be Used

3 Defendant Bella Ben-Henry contends the government must prove any factors that "enhance" the 4 defendant's sentence in this case by proof beyond a reasonable doubt, and the determination of 5 must be made by a jury, citing Apprendi v. New York, 530 U.S. 466 (2000); Blakely v. 6 Washington, 124 S. Ct. 2531 (2004); and, United States v. Booker, 125 S.Ct. 738 (2005). Thus 7 she asks for a bifucated jury trial, one portion dealing with guilt, the other with sentence. 8 Defendant is mistaken. She seeks a remedy that the Supreme Court has not created. She seeks 9 to require application of Justice Steven's opinion in Booker concerning determination of facts 10 in a mandatory sentencing guidelines system (by a jury and beyond a reasonable doubt), while 11 ignoring Justice Breyer's opinion making the guidelines advisory rather than mandatory (thus 12 permitting judges to continue to make factual determinations by a preponderance of the 13 evidence). See the discussion and rejection of this flawed argument by the Ninth Circuit in 14 United States v. Dupas, 417 F.3d 1064, 1067-68 (9th Cir. 2005). 15 16 Measure of Proof in an Advisory Guidelines System The measure of proof required in this case is a preponderance of the evidence standard.

17 The burden of proof for sentencing issues rests on the party seeking the adjustment. The 18 Supreme Court, referencing the Comments to the Sentencing Guidelines (Section 6A1.3) 19 indicated that a preponderance of the evidence is the appropriate standard: "it is `appropriate' 20 that facts relevant to sentencing be proved by a preponderance of the evidence." United States 21 v. Watt, 519 U.S. 148, 156 (1997). The Supreme Court in United States v. Booker did not 22 change this general rule. See United States v. Booker, 125 S.Ct. 738 (2005). The Ninth Circuit 23 Court of Appeals, like most of the courts that have considered this issue, approves of this 24 comment in the guidelines and applies the preponderance of the evidence standard as the general 25 rule. See United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991). See also, United States v. 26 Coleman, ___F.Supp 2d ___, No. CR-2-02-130, 2005 WL 1226622 at *4 (S.D. Ohio, May 24, 27 2005), citing cases falling after Blakely and Booker from the First, Second, Fifth, Sixth, and 28
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1 Seventh Circuits approving a preponderance standard. The Ninth Circuit reaffirmed this rule 2 in United States v. Johansson, 249 F.3d 848 at 853(9th Cir. 2001), noting that as a general 3 matter, due process is satisfied by a preponderance of the evidence, and more recently, in 4 United States v. Dupas, 417 F.3d at 1069. There, citing the en banc opinion in United States 5 v. Ameline, 409 F.3d 1073 (9th Cir. 2005), the court rejected a defendant's contention that 6 sentencing facts must be proved to a court beyond a reasonable doubt (rejecting by inference 7 defendant Ben-Henry's claim that they had to be determined by a jury and a beyond a reasonable 8 doubt). Defendant's argument, the court noted, 9 10 11 12 that sentencing facts must be proved to the court beyond a reasonable doubt­is foreclosed by Ameline. In Ameline, we explained that the district court must continue to apply the burdens of proof set forth in United States v. Howard, 894 F.2d 1085, 1089-09 (9th Cir. 1990). 409 F.3d at 1085-86.

13 417 F.3d at 1069. 14 Some courts have identified limited exceptions to this rule. The Johansson Court

15 described various factors influencing whether due process requires a heightened evidentiary 16 standard. These include: (1) whether the enhanced sentence falls within the maximum sentence 17 for the crime alleged in the indictment; (2) whether the enhanced sentence negates the 18 presumption of innocence or the prosecution's burden of proof for the crime alleged in the 19 indictment; (3) whether the facts offered in support of the enhancement create new offenses 20 requiring separate punishment; (4) whether the increase in sentence is based on the extent of a 21 conspiracy (applicable here even though not charged); (5) whether the increase in the number 22 of offense levels is less than or equal to four; and (6) whether the length of the enhanced 23 sentence more than doubles the length of the sentence authorized by the initial sentencing 24 guideline range in a case where the defendant would otherwise have received a relatively short 25 sentence. 249 F.3d at 854. 26 The Ninth Circuit has consistently applied a preponderance of the evidence standard

27 when, as here, an enhancement is based on the extent of a conspiracy. See United States v. 28
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1 Riley, 335 F.3d 919 (9th Cir. 2003); United States v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 2 1992). As recently as 2003, the Ninth Circuit has found this factor controlling: "The fourth 3 factor controls our analysis. We have applied the preponderance of the evidence standard where 4 an increase in sentence is based on the extent of a conspiracy as opposed to uncharged conduct." 5 United States v. Melchor-Zaragoza, 351 F.3d 925, 929 (9th Cir. 2003). Likewise, the Johansson 6 Court worked through these factors and decided its case based on this factor. Johansson, 249 7 F.3d at 855. 8 Here, a preponderance of the evidence standard is appropriate because the amount of loss

9 is based on the extent of the conspiracy or scheme, albeit uncharged. Ms. Ben-Henry was one 10 of four actors, and was the prime mover in processing the payment requests with the false 11 certifications. She was the one, along with Miller, who best knew the statements were false 12 when made, and that those statements would result in payments of more than $730,000 to Miller. 13 She is accountable for all the losses reasonably foreseeable which resulted from actions in 14 furtherance of the conspiracy. Moreover, none of the other factors merit a heightened 15 evidentiary standard. The sentence is within the statutory maximum, and none of the facts 16 involve new offenses. Also, neither the increase in the number of offense levels nor the length 17 of the sentence authorized by the initial sentencing guideline range make a higher evidentiary 18 standard appropriate. 19 While the increase in offense levels from a base of seven is more than four levels, this

20 factor is not dispositive. The Johansson Court explicitly noted that, "The fact that the increase 21 was more than four levels, however, means merely that Johansson's due process claim does not 22 fail on the ground that his offense level was increased by four or fewer levels." Johansson, 249 23 F.3d at 855-56. Similarly, the Ninth Circuit in Hopper rejected the notion that this factor should 24 control the analysis. See Hopper, 177 F.3d at 833. 25 Furthermore, deviation from the rule based on this factor would cause functionally

26 illogical results in fraud cases. The scheme for computing sentences in fraud cases involves 27 enhancements based upon increasing loss amounts, with additional levels added for any amounts 28
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1 that exceed $5,000. (See §2B1.1(b)(1)). The threshold of a four level increase to the base 2 offense would occur in any case where losses exceed $10,000 ­ this would mean that, were 3 defendant correct, almost all of the fraud cases filed in federal court would require a heightened 4 burden of proof to determine the actual loss or intended loss, whichever is greater. (See §2B1.1, 5 Application Note 3(A). The application notes themselves suggest otherwise, as they permit the 6 court to make a reasonable estimate of loss, rather than engage in detailed and precise 7 accounting. (See §2B1.1, Application Note 3(C)). "The court need only make a reasonable 8 estimate of the loss. The sentencing judge is in a unique position to assess the evidence and 9 estimate the loss based upon that evidence. For this reason, the court's loss determination is 10 entitled to appropriate deference." Id. 11 The Ninth Circuit has faced this question before. Recently in United States v. Dupas, the

12 amount of loss agreed to by the government (less than $5,000) and the loss found by the court 13 (more than $49,000) would have resulted in a six level increase, yet nary a word was said about 14 using a jury to determine the sentence on a limited remand. 417 F.3d at 1069. While the 15 defendant there did not argue for a sentencing jury, as Ms. Ben-Henry does here, the court did 16 not take it upon itself to urge the use of a sentencing jury and there is no suggestion the court 17 overlooked that possibility. Similarly, the Johansson Court was not swayed by the fact that an 18 increase of more than four levels occurred because, as the court noted, "[the defendant's] 19 offense level was increased because of the nature and extent of the offense to which he pled 20 guilty, rather than for acquitted or uncharged crimes." Johansson, 249 F.3d at 857. The 21 Johansson Court noted two cases where the Ninth Circuit had held that due process was not 22 satisfied by the preponderance standard. See United States v. Mezas de Jesus, 217 F.3d 638 23 (9th Cir. 2000) (involving a nine-level increase for an uncharged kidnapping)(emphasis 24 supplied); United States v. Hopper, 177 F.3d 824 (9th Cir. 1999) (involving a seven-level 25 increase based on acquitted conduct)(emphasis supplied). Johansson distinguished itself from 26 these cases by noting, "...unlike Hopper and Mezas de Jesus, [the defendant's] offense level 27 was increased because of the nature and extent of the offense to which he pled guilty, rather than 28
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1 for acquitted or uncharged crimes..." Johansson, 249 F.3d at 857. The Melchor-Zaragoza 2 Court was similarly unpersuaded that a five-level increased should have resulted in a heightened 3 standard of proof, because it resulted from the extent of the conspiracy, and not from uncharged 4 or acquitted conduct. Melchor-Zaragoza, 351 F.3d at 929. In Riley, a fraud case where the 5 offense level was increased eight levels based on losses and intended losses from a conspiracy, 6 the court commented that, "the fact that an enhancement is based on the extent of a conspiracy 7 for which the defendant was convicted weighs heavily against the application of the clear and 8 convincing standard of proof." Riley, 335 F.3d at 926. Therefore, a preponderance of the 9 evidence standard is appropriate because defendant Ben-Henry's sentence would be based on 10 the extent of loss caused by a conspiracy. 11 This same issue, what the burden of proof should be at sentencing, was recently 12 considered by another court of this district. The issue was presented in United States v. Jagdish 13 Singh, CR-03-00540-PHX-DGC. Judge Campbell concluded on June 17, 2005, based on the 14 same arguments made here, that the appropriate standard to apply was a preponderance of the 15 evidence in that case, where the ultimate intended loss exceeded $400,000 (resulting in a 14 16 level increase over the base offense). 17 18 19 20 21 22 23 24 25 26 27 28
I hereby certify that on September 5, 2005, I electronically transmitted the attached document to the Clerk's Office using the

Respectfully submitted this 5th day of September, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona /s/ DANIEL R. DRAKE Assistant U.S. Attorney

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CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Joanne Landfair Attorney for Ed Preston Brian Russo Attorney for Pat Chee Miller Milagros Cisneros Attorney for Bella Ben-Henry Timothy Holtzen Attorney for Fred Marianito S/ Daniel R. Drake

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