UNITED STATES of America, Plaintiff-Appellee, v. Agosto Ayson BIAGON, Defendant-Appellant.
No. 06-10479.
United States Court of Appeals, Ninth Circuit.
April 18, 2007.
510 F.3d 844
But “it is not necessary that fraud be shown by direct evidence or positive testimony. Circumstantial evidence can provide a basis for the jury to infer fraud where ... the circumstances are inconsistent with honest intent.” Stine v. Sanders, 987 S.W.2d 289, 293 n. 3, 66 Ark.App. 49, 55 n. 3 (1999) (citing Pacini v. Haven, 105 S.W.2d 85, 194 Ark. 31 (1937)). Receivables produced proof that Mr. Getts had a motive to induce Receivables to purchase the invoices: Mr. Getts admitted in a deposition that he knew that RJS was dependent on Receivables‘s financing to continue working. Furthermore, when asked in the same deposition, “When you signed off on the invoices why didn‘t you put that [the work] was accomplished rather than approved?“, Mr. Getts stated that he was signing the invoices as “approved” solely for the benefit of RJS so that it could continue to receive financing and that he did not consider the posited distinction. Given Mr. Getts‘s position as project manager responsible for the RJS work, this evidence gives rise to a reason-able inference that he was at least unaware of whether his representations that the invoices were, in fact, approved and would be paid were true or false.
EPS also maintains that Receivables has failed to create a genuine issue of material fact as to whether EPS intended to induce reliance and whether Receivables‘s reliance was justified. We need address these points only briefly. As for the first, the motive that Mr. Getts had to induce Receivables to purchase the invoices is by itself sufficient to create a genuine issue of material fact as to whether EPS intended to induce reliance. Regarding the second, the prima facie reasonableness of relying on the representations of a project manager that his company would pay for work represented by a particular invoice is at least sufficient to create a genuine issue of material fact as to whether Receivables‘s reliance was justified. Genuine issues of material fact thus exist on the fraud claim.
IV.
Accordingly, we affirm the district court‘s entry of summary judgment for EPS on the tortious interference claim, and we reverse the judgment for EPS on the fraud claim and remand for further proceedings on that claim.
Claire M. Leary, San Francisco, CA, for
Before: DAVID R. THOMPSON, ANDREW J. KLEINFELD, and SIDNEY R. THOMAS, Circuit Judges.
Opinion by Judge THOMAS; Concurrence by Judge KLEINFELD.
THOMAS, Circuit Judge:
In this appeal, we consider whether the district court violated the defendant‘s right of allocution when it denied a motion to close the courtroom for sentencing. We conclude that the defendant‘s rights were not violated, and affirm the judgment of the district court.
I
On May 4, 2005, an indictment was filed against Agosto Ayson Biagon and a dozen or so other defendants, charging them with conspiracy to steal valuable items, and theft of valuable items, found in U.S. mail bound for military personnel stationed in Japan. The defendants, including Biagon, worked at a company that provided temporary staffing for Nippon Cargo Airlines at the San Francisco International Airport. Biagon pled guilty to mail theft under
As a result of his cooperation and lack of criminal history, the pre-sentence report recommended Biagon receive a sentence of three months in prison followed by three years of supervised release, along with $2,000 in restitution. The government recommended the same sentence but contended that two years of supervised release was more appropriate. In his sentencing memorandum, Biagon requested that he be sentenced to live in a halfway house in lieu of three months in prison, allowing him to pay the $2,000 restitution while serving his time. He noted that no prison sentence would be required under the Sentencing Guidelines and suggested that he could be given a sentence exceeding three months if he could serve it in a halfway house.
The sentencing memoranda produced by both the government and Biagon were filed under seal. The government moved for an order sealing its sentencing memorandum because “Mr. Biagon cooperated with the government in this prosecution and revelation of these documents could jeopardize him.”
At the beginning of the sentencing hearing, Biagon‘s attorney immediately asked the judge to clear the courtroom or move the hearing to the end of the day so that Biagon‘s cooperation with the government could be discussed freely, but the district judge refused:
Ms. Leary: Your Honor, can the courtroom be cleared, or can we be moved to a point where it‘s easier-
The Court: Well, I don‘t think it‘s necessary, in the sense that the matters are well laid out in the both the pre-sentence report and in your respective sentencing memoranda; and so the issues that you raise are.... I understand your position, I understand the government‘s position, and I don‘t think it‘s
necessary to bare them in court, and therefore, I don‘t believe-I‘ve sealed the documents, but I don‘t need-I‘m familiar with all of these cases. There are many of them. So I have a great deal of knowledge about what has happened in this case. Ms. Leary: I see.
The Court: So if you want to refer to it in sort of elliptical terms, you can do so, but I‘m not inclined to seal the courtroom.
The district court again addressed the cooperation issue when it stated: “putting aside the point that we‘re not going to discuss, which is sort of the elephant in the room here, but I‘m familiar with the elephant as we all are....” Later in the hearing, the district court gave Biagon the chance to exercise his right of allocution, asking if there was anything he wished to say. Presumably through a translator, Biagon stated: “I am asking for the forgiveness of this court, from the United States government, for my involvement in this case, and the people that I hurt, I asked for forgiveness. I am very sorry for what I did. And that‘s it.” Neither Biagon nor his attorney mentioned his cooperation or referred to it during the hearing.
At the hearing, Biagon‘s counsel again asked for more than three months in a halfway house instead of three months in prison, in order to allow him to pay restitution, arguing that he would not be able to pay after prison because he would likely be deported upon release. The government continued to recommend a prison sentence. The district court sentenced Biagon to three months’ imprisonment followed by a three year term of supervised release. The court also ordered Biagon to pay restitution of $2,000. This timely appeal of his sentence followed.
II
The sole question in this appeal is whether Biagon‘s right of allocution was violated. “In the context of criminal law, the backbone of [our] democratic faith is the right of a criminal defendant to defend himself against his accusers; and it has long been recognized that allocution, the right of the defendant to personally address the court, is an essential element of a criminal defense.” Boardman v. Estelle, 957 F.2d 1523, 1526 (9th Cir.1992) (footnote omitted). The purpose of the right of allocution is to allow a defendant to “bring mitigating circumstances to the attention of the court.” Sherman v. United States, 383 F.2d 837, 839 (9th Cir.1967). Due process requires that a defendant who seeks to speak must be given such an opportunity before a sentence is imposed. Boardman, 957 F.2d at 1524. However, we have “never held that a defendant has a right to unlimited allocution.” United States v. Leasure, 122 F.3d 837, 840 (9th Cir.1997).
The Federal Rules of Criminal Procedure specify a means of implementing this right. Before imposing a sentence, a district court must provide the defendant‘s attorney an opportunity to speak, and also must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”
In this case, the record clearly shows that the district court asked Biagon whether there was anything he wished to say before sentence was imposed, and Biagon made a brief statement to the district court. Biagon actually exercised his right of allocution. He was not deprived of any constitutional right.
First, the district court did not err in denying the motion to close the courtroom. The Federal Rules of Criminal Procedure provide for a method of hearing a defendant‘s statement in camera. Rule 32 provides in relevant part that “[u]pon a party‘s motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4).”
Under these circumstances, the district court was quite correct in denying the motion, particularly given that the motion was made orally at the hearing without prior notice. A notice to the public is required before a court may close court proceedings to which a qualified right of access exists. Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th Cir.1998); Oregonian Pub. Co. v. District Court, 920 F.2d 1462, 1465 (9th Cir.1990). Under the proper procedure, notice to the public would have been accomplished by the filing of a motion under
The Supreme Court has made clear that criminal proceedings and documents may be closed to the public without violating the first amendment only if three substantive requirements are satisfied: (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest. Press-Enterprise, 478 U.S. at 13-14, 106 S.Ct. 2735 (test applied to accused‘s right to a fair trial). The court must not base its decision on conclusory assertions alone, but must make specific factual findings. Id. at 13-15, 106 S.Ct. 2735.
Given these considerations, without prior notice of the motion, much less an opportunity to follow the process required by the Supreme Court in Press-Enterprise for closure of a public criminal proceeding, the district court was entirely correct in denying the contemporaneous oral motion to close the hearing.
Second, the record clearly shows that the district court was fully aware of the extent of Biagon‘s cooperation with the government. Therefore, there is no merit to Biagon‘s suggestion that the district court did not consider his cooperation, or that his sentence would have been different if he had described the extent of his cooperation during his allocution.
Finally, although the right to allocution is an important one, we have “never held that a defendant has a right to unlim-
AFFIRMED.
KLEINFELD, Circuit Judge, concurring:
I concur in the result the majority reaches, and in most of the reasoning. I respectfully disagree as to the matters discussed below.
The majority correctly points out that Biagon (1) had a constitutional right to allocution, (2) he exercised it, (3) he did not say that he had more that he wanted to say if he could speak in a closed courtroom, and (4) the judge did not abuse his discretion under
Defense counsel did not want the public proceeding to reveal Biagon‘s cooperation with the government. His cooperation was the reason urged for lenience in sentencing. The judge said he was familiar with this “elephant in the room” and would consider it, so closing the courtroom in order to bring the “elephant” to his attention was unnecessary. The court‘s decision was within its discretion under
That is all we needed to say to decide the case. The majority has said it.
I do not agree with the majority‘s holding that “Biagon did not make a motion.” There is no requirement in the rule that a written motion be filed. Counsel‘s request was clear. Counsel often phrase oral motions as “requests.” A “motion” is nothing more than a word lawyers use to refer to requests made of the court. There is no support for requiring more than what counsel did to invoke the court‘s discretion under
The majority goes on to say, in error, that “[a] notice to the public is required before a court may close court proceedings to which a qualified right of access exists.” That proposition is mistaken. The precedents the majority cites are Oregonian Publishing Company v. United States District Court2 and Phoenix Newspapers Inc. v. United States District Court.3 Neither is on point. Both cases are petitions for
I do not see a good reason to turn this easy case affirming denial of a defendant‘s motion to seal the courtroom into a case about an entirely different subject not raised by appellant‘s brief, a new press right to be present during sentencing hearings.
Generally courtrooms ought to be open and ordinarily sentencing hearings ought to be open, as this one quite properly was. In criminal prosecutions, the right to a “public trial” is protected by the Sixth Amendment. The public and whatever press have any interest, including newspapers, freelance writers, bloggers and anyone else, ought generally to be able to see what is going on in courtrooms, including sentencing hearings. But occasionally there is a good reason to hold sentencing proceedings, at least partially, in camera.
The most common reason for in camera proceedings during sentencing arises when a defendant has cooperated with the government. The purpose is to protect him or her from being murdered by individuals not sharing the defendant‘s interest, or fellow prisoners who find out that he was a “snitch.” Many criminals have strong feelings about people they call “snitches,” even where their own cases were not affected. It is one thing to send a defendant to jail or prison and quite another to set him up to be hurt or killed there.
Another commonly arising reason for in camera proceedings is where details of sexual matters will be exposed, such as where children and others testify about the consequences of being molested. Sometimes embarrassing medical information has to be brought before the court. Some-times the victim of a financial crime does not want the public to know just how precarious his or her business or charity is on account of the defendant‘s fraud or embezzlement, because exposure will complete the destruction the defendant started. Sometimes the government has to bring out matters of national security. These are only some of the many legitimate “good cause” considerations that the court should weigh when it exercises its discretion under
An oral request without prior notice has been consistent with the law, at least until this case.
We ought not use this case as a vehicle to develop a new rule unnecessary to a decision that may sacrifice other important public interests to the interest in press access.