United States v. James Franklin Ray, United States of America v. James Franklin Ray

Beloof, liberally Douglass in conformance with E. of the Dist. be construed Office Atty., Portland, Or., purpose, way County, in a which avoids Multnomah its and incongruous plaintiffs-appellants. results.” Voris v. for harsh and 88, 92, Eikel, 328, 333, 74 S.Ct. Boardman, Dennis A. Boardman & Director, (1953); accord, O.W.C.P. L.Ed. 5 Portland, Or., Wong, defendant-appel- Assocs., 459 U.S. v. Perini North River lee. 297, 315-16, 634, 646, 74 L.Ed.2d no- We therefore hold that a claimant’s third-party settle- employer tice to an of a WRIGHT, Before CHOY any employer has made ment before the THOMPSON, Judges. Circuit Agency has an-

payments and before the under any award is sufficient sec- nounced ORDER 33(g)(2).

tion AFFIRMED. authority Pennsylvania Dept. On the _ Davenport, Public v. U.S. Welfare _, S.Ct.

(1990),we affirm the of the district decision that a state criminal restitution obli dischargeable gation Chapter under 13 of Bankruptcy Code. PRICE, In re Ann Marie Debtor. AT-

MULTNOMAH COUNTY DISTRICT

TORNEY’S OFFICE Victims As- Program, Plaintiffs-Appel-

sistance

lants, v. America, UNITED STATES of PRICE, Defendant-Appellee. Ann Marie Plaintiff-Appellee, No. 89-35482. RAY, James Franklin Appeals,

United States Court Defendant-Appellant. Ninth Circuit. Nov. 1990.* America, Submitted UNITED STATES of Plaintiff-Appellant, 23, 1990. Decided Nov. RAY, Franklin

James Defendant-Appellee. 89-10218, Nos. 89-10255. Appeals, United States Court Ninth Circuit. Argued Aug. 1990. Submitted Decided Nov.

* 34(a). appropriate Fed.R.App.P. panel finds this case for submis- Circuit Rule 34-4 pursuant argument sion without oral to Ninth GOODWIN,

Before Judge, Chief NOONAN, KOZINSKI and Circuit Judges.

GOODWIN, Judge: Chief James Franklin Ray appeals his convic- conspiring tion for one count of manu- facture and methamphetamine distribute and one count manufacturing of metham- phetamine. challenges He the admission of a welfare investigator’s testimony fraud concerning certain documents his wel- fare file and contends that there was insuf- ficient evidence to sustain his conviction. We affirm the conviction. cross-appeal, government On argues erroneously that the district departed court sentencing guidelines. downward from the The district departed downward be- cause the Ninth Circuit’s invalidation of the guidelines, Supreme later reversed Court,1 Ray’s guidelines resulted in sen- being grossly disproportionate tence codefendants, those of his who were not guidelines. sentenced under the We affirm the sentence.

Ray and his codefendants were indicted on one conspiring count each of manu- methamphetamine facture and distribute manufacturing methamphetamine.2 Ray was also indicted on one count of knowingly maintaining place pur- a for the pose manufacturing methamphetamine; charge this was later dismissed on the government’s motion. trial, government

At introduced sub- stantial evidence tending prove Ray that closely related to the manufacture of Cordova, Lodi, Cal., Jesse for defendant- methamphetamine. appellant-appellee. government also introduced evidence Lapham, Atty., R. Steven Asst. U.S. Sac- Ray recently acquired had wealth fol- ramento, Cal., plaintiff-appellee-appel- lowing period poverty. relative Wel- lant. investigator fare fraud Susan testi- Webber fied, Ray’s hearsay objection, over Ray family and his received welfare bene- fits between November Novem- Kanahele, codefendants, 1. See 2. Two other Gubiensio-Ortiz Thomas Gene Talk (9th Cir.1988), Talk, disapproved Jimmy Ray charged in United were also in the Mistretta, Ray’s States v. 488 U.S. S.Ct. indictment. codefendants were also in- (1989) 102 L.Ed.2d 714 and reversed United dicted on eleven additional counts. Their con- Chavez-Sanchez, States v. 647, 488 U.S. victions and the additional counts are not rele- appeal. vant to this 803(6), witnesses also testi- missible under Fed.R.Evid. ber Government the busi- during rule,4 first half of 1988 exception hearsay fied that ness records to the on a payment cash down requirements $6000 made because the foundation had payment truck and a down on pickup $3600 not been established. The evidence was farm, $11,000 paid for a motor- cash admissible. attorney. cycle and retainer to an $2500 normally Business records are not Supreme sentencing, Prior to self-proving. For the records to be admis Mistretta, decided Court sible, following foundational facts must 647, 102 L.Ed.2d S.Ct. be through established the custodian of the constitutionality (1989), upholding the qualified (1) records or another witness: Ray’s codefend- sentencing guidelines. the records must have been made or trans during the ants had sentenced brief been by person knowledge mitted with at or Kanahele, v. period when Gubiensio-Ortiz recorded; near the time of the incident and (9th 1988), holding that 857 F.2d 1245 Cir. (2)the kept record must been have the sentencing guidelines were unconstitu the regularly course of a conducted business tional, apply to allowed the district court activity. Kennedy Angeles v. Police Los Ray had the misfor pre-guidelines law. 702, 1990). Dept., 901 F.2d 717 Cir. imposition tune to have his time for the phrase qualified “other wit sentence fall after the date Mistretta. broadly interpreted require only ness” is to of the Ray objected application to the that the witness understand the record- sentencing guidelines to his case on ex new keeping system. Franco, United v. States grounds. asked the post He also facto 1136, (7th Cir.1989); 874 F.2d 1139-40 guide- depart downward from the 902, Hathaway, 798 F.2d United States by the sentence mandated lines because (6th Cir.1986); Berger, 4 Weinstein and 906 long guidelines disproportionately was ¶ Evidence, 803(6)[02]at 803- Weinstein’s compared to his codefendants’ sentences. Here, 178. that she was Webber testified Ray’s un- The court calculated sentence filing reporting familiar with the re guidelines to be 262 to 327 months. der the public quirements assistance benefits required fairness The court believed that forms used in connection and the with closely more Ray that receive a sentence Thus, requirements. although those Web to the sentences of his code- proportionate Ray’s welfare ber was not the custodian of They had received sentences of fendants. records,5 “qualified she was a witness” years imprisonment. The court five to six 803(6)’s re establish that Rule foundational guidelines departed downward from quirements had been met. Ray years impris- sentenced to twelve requirement no There is count, sentences on each with the onment government when and whom establish concurrently, years’ super- three to run prepared. documents were release. vised 585, Huber, 772 F.2d 591 States v. (No. 89-10218) Ray’s Appeal Cir.1985)(“there requirement that the is no Testimony 1. Webber’s government precisely show when the compiled”); district court [record] contends that (9th Cir.1979) 198, n. 1 201 Basey, admitting testimony of Susan erred admitted to estab (college properly records Webber, investigator3 fraud with a welfare though the address even Attorney’s lish defendant’s County District Of- the Butte not herself record the infor fice, custodian did testified about the contents who did), did not know who cert. Ray’s file. mation and documents welfare certain 1854, denied, 446 U.S. testimony was not ad- argues He that the parties dispute Susan Web- investigator investigates do not alle- 4. The A welfare fraud testimony hearsay. ber's gations fraud and files criminal of welfare charges fraud with the District Attor- of welfare however, were, possession in her 5. Therecords ney's office. at trial. Sufficiency “All that the rule re- II. of the Evidence L.Ed.2d 274 quires the document be made ‘at or is that Ray contends that there was insufficient pur- it near the time’ of act or event support evidence to his conviction. re-We Huber, F.2d ports to record.” at 591.6 challenge sufficiency view a to “the light evidence in the most to the favorable testimony established the Webber’s ‘any to determine if rational Government necessary facts for the admis foundational found the trier of fact could have essential sibility of the contents of welfare beyond crime elements of the reasonable exception under the business record files ” Mason, United States v. doubt.’ hearsay testified that rule. She (9th Cir.1990) (quoting F.2d benefits) and (application for welfare CA-2 Virginia, Jackson v. report) forms in the (monthly income CA-7 2781, 2789, (1979) (em- S.Ct. file, testimony her upon which she based phasis in original)). examined, personally she had and which solely by provided contained information conspiracy The crime of consists himself; applicant, namely, Ray were (1) agreement an of three elements: worker; eligibility reviewed an (2) accomplish illegal objective; an or one required contemporaneously to be were more overt acts in furtherance of the il Depart filed and maintained the Welfare (3) legal objective; and the intent to commit Accordingly, the district court ment’s file. substantive crime. underlying the Ray’s wel properly admitted into evidence Thomas, 1341, v. States 887 F.2d 1347 803(6). under Rule fare records Cir.1989). agreement may The be inferred The admission of evidence under the facts and circumstances of the hearsay firmly exception a rooted to the Id. Although proximity case. mere to the not violate the confrontation rule does activity scene of illicit is insufficient Roberts, 56, 66, v. Ohio clause. 448 U.S. conspiracy, establish involvement a a 2531, 2539, (1980); 100 S.Ct. presence may support in defendant’s Baker, 855 F.2d 1353, United States v. light ference when viewed in of other evi denied, (8th Cir.1988), cert. 1360 Id. conspiracy dence. at 1347-48. “Once 2072, 1069, 109 S.Ct. 104 L.Ed.2d 636 exists, establishing beyond evidence a rea exception The records business sonable doubt defendant’s connection with hearsay firmly excep rule is a rooted conspiracy, though even the connection Norton, United States tion. 867 F.2d slight, is is sufficient to convict defen [the] _ denied, 1354, (11th Cir.1989), cert. 1363 knowing participation dant of in the con U.S. _, 3192, L.Ed.2d 701 109 S.Ct. 105 Penagos, spiracy.” 823 (1989); Baker, 1360; see also at 855 F.2d 346, (9th Cir.1987). F.2d 348 Roberts, at 448 U.S. at 66 n. (“ ‘Properly n. 8 administered the The evidence introduced at trial exceptions Ray’s conspiracy public strongly supports business and records convic among Ray dispute tion. the existence of would seem to be safest does not ”) Comment, hearsay exceptions.’ (quoting conspiracy to manufacture metham (1970)). Accordingly, phetamine. Ray’s knowledge 30 La.L.Rev. of and con reject Ray’s conspiracy contention that the admis nection with the can be inferred we (1) testimony following Ray nego evidence: sion of Webber’s violated from the purchase clause. tiated for the of the backhoe confrontation course, Ray duty person providing provide if the the informa- was under a business Of office, acting the business record is not under a tion in financial information to the welfare accuracy regular duty of in the course of busi- Ray's party and statements were admissions ness, hearsay problem may arise. a double See nonhearsay were under Fed.R.Evid. therefore Pazsint, e.g., United States v. 801(d)(2). Nonhearsay statements recorded in Cir.1983) (recorded calls of witnesses re- not have been made a business record need porting a not admissible because witness- crime duty to be admissible. See under business duty provide es were not under business Basey, 613 F.2d at 201 n. 1. information). Although it is unclear whether prop- upon grounds which was found on the Brush Creek not guide- mentioned in the (2) Ray purchased erty; pounds highly lines “will be unusual.” Id. occasions; separate (3) three Freon on there mitigating are no cir Here respirator empty mask an and Freon con- respect cumstances with to the criminal prop- tainer were found at the Powerhouse conduct, unique but circumstances to this erty, Ray where lived with codefendants “highly case were equal unusual.” While Giles; (4) Stephen Edward izing among sentences codefendants who Ray sought generator information about a being guidelines are sentenced under the similar to the one found at the Brush Creek was a factor Sentencing considered property. Commission, it is unlikely that the Commis Ray’s for manufactur conviction sion contemplated ever the Ninth Circuit’s ing methamphetamine supported by brief flirtation with rebellion in the Gu- following above evidence as well as the biensio case. (1) Ray’s nu evidence: residence contained aberration, During the Gubiensio some equipment merous used in chemicals sentences, by guidelines measure, low were methamphetamine; the manufacture of Ray’s handed out. codefendants were inci- (2)police found a formula for manufac dental beneficiaries. turing methamphetamine purse in a in the government asks us to find that the master bedroom of residence. sentencing kind of disparity present here is Viewing light the evidence most proper not a in departing consideration Mason, government, favorable to guidelines. downward from the This re- F.2d at the evidence was sufficient to judicial straint on discretion has caused dis- permit a reasonable trier of fact to find judges regard guide- trict nationwide to the Ray conspired manufacture to lines with less than wholehearted enthusi- methamphetamine. manufactured asm. (No. 89-10255) Cross-Appeal government’s position The presents in government contends that The the dis- shabby somewhat form the ancient conflict departing trict court erred in downward justice. between law and Law tells us that guidelines range of from calculated guidelines comprehensive the are “a set of 262 to 327 months. The district court de- designed limit rules that are the sentenc years parted downward from about discretion,” ing contemplate court’s guideline years ground on the that the only will occur in the un departure “that long disproportionately sentence would be usual v. Nuno- case.” United States six-year compared to the five to sentences Para, 1412-13 Cir. codefendants, by Ray’s had received who 1989). Justice tells us this is the unusual during sentenced the Ninth been Circuit’s presenting not taken case a circumstance guidelines. temporary refusal to follow the Sentencing by into the Com consideration departure appropriate A downward mission. “the court finds that there exists ... “ where determining ‘In whether a circum- kind, mitigating of a circumstance or [a] adequately taken into consider- stance was adequately degree, not taken into consid- ation, only the sen- the court shall consider Sentencing in eration Commission statements, and tencing guidelines, policy formulating guidelines_” 18 U.S.C. commentary Sentencing official 3553(b) (West Supp.1990). ” § v. Cer- Commission.’ United States Lucatero, departures F.2d guidelines permit

The vantes 3553(b)). Cir.1989) grounds Chap (quoting in 18 U.S.C. resting upon referred to § policy grounds Nothing sentencing guidelines, or on in the [Departures] ter Part K statements, commentary of the guidelines. in or official not mentioned suggests that the Sentencing Sentencing Commission States Guidelines [U.S.S.G.] One, 4(b). possibili- guide A The took into account Chapter Part at Commission sentencing contemplate departures resting ty application that the lines suspended, logic plucked over from Justice temporarily be ence guidelines would — the common law— creating description a situation where code- Holmes’ thereby statutory in justify same case and involved of a clear fendants in the cannot defiance activity underlying criminal the same command. conspicuously under would be sentenced here does majority has done What sentencing laws. different comport type rough-and-ready with unwarranted sentenc- The need to avoid may terribly justice and not seem frontier among codefendants in- ing disparities significant. implications But the activity has in the same criminal volved quite profound. are Countless decision legitimate sentenc- long considered been particular ap- case might make a factors Capriola, States v. ing concern. United unusual,” depar- “highly calling for a pear (9th Cir.1976). Dis- F.2d 320-21 up. example, the ture —downward or For one of the most

parity said to be might gotten good deal of case have guidelines were intend- important evils the exposing defendant and his publicity case, in this on these ed to cure. We hold abuse; family or the defendant to much facts, acted that the district court unusual might public be a official and the conviction departing downward within its discretion job him his in addition to a might cost sentencing range mandated sanction; might criminal or the defendant guidelines. already prison charges on state and a be long might seem like use- federal sentence it is well to remember in a while Once possibilities are as di- piling less on. The logic; life of the law has not been that the experience, human each case verse as experience.7 government’s it has been vying for our attention as the one where position undeniably logical. case is this as to “highly the facts are so unusual” triumph of adopted, If it would be a classic Congress has made justify departure. But logic common sense. over “highly unusual” circumstances all of these AFFIRMED. they happen also irrelevant unless be aggravating circumstances. mitigating or KOZINSKI, dissenting Judge, Circuit in No. 89-10255: inquiry, By dispensing with the threshold majority only ignores express an not I also strikes a congressional command but provided a district Congress has philosophical base on serious blow at the depart from the may not downward court no- which the Guidelines are founded—the range by the Guidelines “unless established ma- culpability. tion of individual Here the mitigating circum- ... there exists [a] departure based jority allows downward 3553(b) (emphasis 18 U.S.C. stance." § not what defendant did or refrained on added). majority concedes that “here The doing, the extent of harm from nor on circumstances,” mitigating there are no activity, criminal nor on his caused his added), (emphasis never- maj. op. at 567 but capacity or state of du- diminished mental departure. approves a downward theless ress; short, having anything in not on to do Instead, defendant at all. commend- with the majority’s The candor is to be happened to the departure is based on what jurisprudence its is not. Nowhere ed but But statutory colleagues-in-crime. apply must defendant’s it written that proper would such a circumstance also be except “highly in unusual” cir- language theory departing upward, on the cumstances; principle gives a basis for no of law that, “highly are un- if the circumstances power to discard a limitation Con- court the statutory limitation on enough, usual” fit to write into the statute. gress saw (that the circumstances experi- upward departures advantages of Aphorisms about Coke, Law, Holmes, The Institutes law....” Sir Edward Common 7. Oliver Wendell The of Frost, (quoted England, in Shrager 172, Quota- Lawes vol. 1628-1641 (quoted The in of Frost, Lawyer, p. Publishing Shrager Quotable England The Lawyer, p. New ble Associates, Inc., Inc., Associates, 1986). Publishing 1986). England is the life of New “Reason nature) congruous.” Carpenter, can be United States v. aggravating an must be of Cir.1990).1 Any idea defies ac- 914 F.2d with? such dispensed justice play. and fair Is cepted notions of pinching any different because the ease Ill prosecutor’s foot? is on the shoe Perhaps majority believes that this is upon themselves to courts take it When case, very significant specific not a as the statutory language, they of- upon improve departure disparity for the caused basis —a lot of trouble that buy themselves a ten surrounding by uncertainty implemen- Here the immediately obvious. may not be re- tation of the Guidelines—will not be pre- I long coming. not be trouble will peated. principles by But the which the quietly breed its own will dict upheld departure here is transcend that determine calling upon us to

jurisprudence, generosity today comes narrow issue. Our “highly are of circumstances what kinds language ignoring at the of cost enough emancipate us unusual” circuit; law of the it Guidelines and the For the benefit statutory strictures. sentencing determinations introduces into might try and the bar who members of type unguided flexibility that is like- discretion, let I will exercise this guess how ly many to cause us headaches the fu- I a 9V2 wide. reflect that wear the record respectfully ture. I dissent. II To be colleagues err a second time.

My departure, the cir basis for permissible one that was “not must also be

cumstance by the into consideration

adequately taken U.S.C.

Sentencing Commission.” 3553(b). majority a conflict creates § America, failing recognize circuit STATES within our UNITED Plaintiff-Appellee, adequately Sentencing Commission that the among co- equalizing sentences considered Enri In defendants. McDOUGHERTY, D. aka Lester Lesester Cir.1990), 906 F.2d 1356 quez-Munoz, Johnson, Defendant-Appellant. could whether a district court we addressed No. 89-50245. equalize the defendant’s depart upward to co-perpetrators those of his sentence with Appeals, States Court “Equalization is not a said no: and we Ninth Circuit. a ba specified the Guidelines factor [as July 1990. say Argued and Submitted nor is it one we can departure], sis only Id. at 1359. The overlooked.” Nov. 1990. Decided Enriquez-Munoz difference between court there is that the district this case upward, whereas the district

departed Surely departed here downward. equalization is can’t matter. Whether

this permit that would type of factor depart the Guidelines

district court the same an precisely have

range must goes up or the district court whether

swer

down; contrary renders any conclusion entirely in- resulting circuit law ...

“our however, reasoning speaks louder than its purported its panel to leave Enriquez-Munoz today. Enriquez- question open Munoz, we answer words. demonstrated, As F.2d at 1360.

Case Details

Case Name: United States v. James Franklin Ray, United States of America v. James Franklin Ray

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 23, 1990

Citation: 920 F.2d 562

Docket Number: 89-10218, 89-10255

Court Abbreviation: 9th Cir.