United States v. James S. Jenkins

assist Schulte in avoiding tax liability for BROWNING, Before WALLACE and 1979. FLETCHER, Judges. Circuit one-year Schulte served a sentence for evasion. The record does not indicate FLETCHER, Judge: Circuit punishment, any, what if Jones received. 1987, In June of jury guilty returned a jurisdiction pursuant haveWe to 28 U.S.C. against verdict James Jenkins on two 1291. § aiding assisting counts and prepara- tion of false income taxes. Jenkins was II sentenced to years prison three on Count years probation and five Scope on Count II. Limitations on the Cross-Ex- The district court conditioned amination on payment $250,225.00 Jenkins’ in restitu- a. Standard of Review argues tion. Jenkins the conviction Whether the court district has vio (1) be reversed should the district the confrontation lated clause is a improperly limited scope court of cross- involving law accused’s constitution prosecution of a leading examination wit- ally guaranteed right a fair trial and is ness, Schulte; (2) Bruce the indictment Chipman Mercer, reviewed de novo. v. insufficiently specific. argues He also 528, (9th Cir.1980). Although F.2d 530 628 pro- that the “restitution condition” on his novo, our review is de we nonetheless rec improper. We affirm bation the convic- ognize that trial courts the conduct of tion, but vacate his on sentence both counts trials have discretion as to considerable resentencing. remand for admit, they they evidence what what ex clude, and questions may how and what provided a asked fair trial is had. See 1979, Special Agent IRS McClintock, Checkwith States v. 748 United F.2d began investigation 1278, (9th Cir.1984), denied, of the tax affairs of 1289 cert. investigation 822, 106 75, (1985); Bruce Schulte. The focused S.Ct. U.S. 88 L.Ed.2d 61 Kennedy, any such United States violation was harm- denied, 465 U.S. Cir.1983), cert. less. (1984). 79 L.Ed.2d 704 S.Ct. The Merits b. of Jenkins’ Confrontation good district court has a deal of Because a Clause Claim cross-examination, limiting discretion argues Jenkins normally reviewing will hold that the right court violated his constitutional the confrontation district court violated against confront witnesses him when it only if it concludes that district clause ruled that Jenkins’ counsel could not in jury informa court denied the “sufficient quire cross-examination whether appraise the biases and motivations tion to January Schulte’s sworn affidavit of McClintock, 748 F.2d at of the witness.” product 1986 was the of coercion or duress. Jackson, 1290. Accord United States Paragraph in this affidavit states ef (9th Cir.1985). suggested fect that Jenkins to Schulte that reviewing the court concludes Once he the documents and back-date that Jen the district court violated the confron explained back-dating kins that this would clause, decide whether the tation it must wiping the effect of have out Schulte’s tax error was harmless. Our liability participation district court’s from his in the for Chipman, expressed in prior eign circuit law spe trusts and would divert the IRS (“Confrontation agent F.2d at 533 clause doc investigating cial Schulte’s involve require to reversal if there is in appears trine ment those trusts. error; any whether the error was harmless During examination, redirect considered.”), particular case is not in the paragraph maintained that 6 of the affida- Delaware v. Van vit, although by has been overruled conceptually,” “true is “not

Arsdall, 475 U.S. 673, 684, if true.” Schulte then asked he could ask (1986), in 89 L.Ed.2d 674 which the judge question, the a judge and the dis- Supreme Court held jury. out, jury missed the While the was constitutionally improper a the denial of judge saying Schulte told the that “I am impeach defendant’s that statement was taken I under duress. bias, like witness other Confrontation you tell what I cannot will was true. Chapman errors, subject Clause say they perjury put threatened me with analysis. The in harmless-error correct jail. really me in I don’t know what to do.” whether, quiry assuming that the dam judge then asked Jenkins’ counsel to aging potential of the cross-examination questions proposed the he ask Schulte realized, fully reviewing were jury. During ques- in front ask this say that the error might nonetheless was tioning, if Jenkins’ counsel asked Schulte beyond harmless a reasonable doubt. just in Schulte had said that the statements such an error is harmless in a product Whether the affidavit were the of coercion depends upon particular “yes.” case a host of and duress and Schulte answered [including] importance judge questioned factors of The then ... Schulte about duress, testimony prosecu pre- the nature of the coercion and the witness’ case, sumably get testimony tion’s order to some sense of what whether cumulative, meant these presence or absence of Schulte words. corroborating contradicting or evidence BY THE COURT testimony of the witness on material Q. you speak When of coercion du- points, the extent of cross-examination ress, Schulte, being present Mr. as and, course, permitted, otherwise you gave your mind as of the time strength prosecution’s overall statement, 18, 1986, January you are re- case. ferring to some kind of threats that were being you many then made to so Thus, “the extent of cross-examination oth- words Mr. Checkwick? permitted” is a relevant factor erwise both No, determining A. Your Honor. What I was refer- there was a con- realize, you know, I ring frontation clause violation and in determin- to then didn’t my yes, signed. I was COURT: of course. If just it was when [in I Saturday. And asked lawyer’s course of the two events has not been office] And agreements. we found mentioned, course, on these you earlier can day I was sentenced. same mention it.... phone saying had a I am is I So what MR. I prop- HOEVETT: ... also think it somewhere, you me I have meet call will er suggestQ cross-examination to go you. I over with a statement want would, anyone that Mr. Schulte felt some in a coffee I met Mr. Checkwick And pressure morning he was to be agreement shop. just over this We went cooperate sentenced to with Mr. Check- already typed up pre- he had wick. I don’t if necessarily know that is changes on it made a few pared. We encompassed within the words “coer- And here it stands. mean basically. cion” and Certainly “duress.” he wasn’t really the time to review it. I didn’t position in a meeting to refuse a with Mr. make the statements sit down and didn’t Checkwick because he knew he was look- saying everything conceptually. I am say something for the Government to here is the truth. sentencing. at the Well, feeling pres- under Q. you were Well, anyone THE COURT: who is as your time sentence sure at that skilled you an advocate as are can find coming up? was other adjectives approach which the right. A. That is same concept as are embodied in the Q. pressure from the sentence I mean words “coercion” and “duress.” And alone? play by that one we sort of will have to (No response.) A. I suggest you ear to I because anybody get- that is Q. That is true of already you you told I will allow to con- sentenced, ting ready to be isn’t it? up nect But I two events. don’t want A. That’s true. you barging question in with a direct [on] Q. you given But were coercion and duress. object to various by Mr. Checkwick Adjectives you may that choose to use or to parts of it and to make corrections going —I’m not to rule on them in ad- that corrections be made? ask simply say you I that I rule vance. right. That is what we have A. That is that out. done. returned, jury After the Jenkins’ counsel out, jury was still While length in did fact Schulte about (Mr. lawyer that Jenkins’ Hoe- court ruled signed pressures felt when he

vett) use the “coercion” could not words January his affidavit of during “duress” his cross-examination and Q. signed And was [the affidavit] jury, of the but that he could front morning you were to be sentenced before inquire pressures Schulte was about this shop in the coffee in the basement of feeling January 8: on building? I rule out the claim THE COURT: ... building building. federal A. This or the way exploration of coercion or du- recall don’t which. implicit explicit, in—or ress that of Mr. Hoevett’s say, should some Q. present; you people And two were questions I treat those as questions. Mr. Checkwith? and I

being proposed cross-examination A. Correct. they that are not entitled to be rule Q. lawyer Your wasn’t there? jury. presence of the asked A. No.... May I be allowed MR. HOEVETT: Q. you executed this And at the time inquire into the circumstances you sentence document did know what given; was that it was the statement going you were to serve? he given morning before was IA. had no idea. be sentenced? (1985) curiam) (per (emphasis origi- you know what the maxi- 15

Q. Okay. Did nal). exposure was? mum Yes, years. I did. Five

A. assessing Since the test for you up end Q. sentence did Okay, what a district court abused its discretion under serving, Mr. Schulte? by limiting cross-examina Fed.R.Evid. substantially year_ A. tion is the same as test One assessing whether the district court talking your frame of Q. about I am by limit the confrontation clause violated signing you the doc- mind when were cross-examination, we also hold that you ument, pressure, did you felt some district court did not abuse its discre not? Lewy Rule 403. tion under See v. South A. Correct. Co., Transportation ern Pacific pressure from Mr. Q. You felt some (9th Cir.1986) (“[T]he Supreme your part it was Checkwith and our court have held that while Court you agreed that to sit plea agreement parties usually are entitled to introduce cooperate him and in their down with biases, some evidence witnesses’ courts investigation, it not? ongoing have ‘wide discretion’ under Rule 403 to true. A. That is impose quantity type limits on the things Q. part of the that And that was they long As evidence introduce.... in order to enter into the you had to do jury provided ‘sufficient information previously agreement you had plea appraise and motives bias [overall] signed? witness,’ generally not we have [a] Right. A. the trial court to have abused its found say Q. it’s fair to Now discretion.”) (footnote omitted). to Mr. that are attributable statements today you Paragraph in 6 can’t Jenkins Sufficiency the Indictment of statements were made swear that those sufficiency an in We review the by Mr. Jenkins? de novo. v. Buck dictment United States true. A. That is 893, (9th Cir.1982), cert. ley, 689 F.2d 897 1778, denied, 460 U.S. 103 S.Ct. 76 permitted to lawyer was Since Jenkins’ (1983). argues that L.Ed.2d 349 Jenkins length pressures the Schulte felt explore at constitutionally indictment is insuffi the signed the affidavit and the at the time he and that the district court therefore cient of considerable jury thus had the benefit denying dismiss the erred in his motion to appraise to with which information gist argument indictment. The Jenkins’ signing in the affida- Schulte’s motivations the indictment failed to inform Jen is that vit, court’s conclude that and cause of the accu kins of “the nature the use of the two words prohibition on in it “does not mention in what sation” the and “coercion” did not violate “duress” aided, willfully manner the defendant as Although Jenkins clause. confrontation procured preparation in and ... the sisted lawyer his had ex- apparently wishes that materially presentation of the false exhaustively pressures the more amined question.” returns signed the affi- felt at the time he Schulte davit, ruling the district court’s narrow does not It is clear that the Constitution the lawyer could not use that Jenkins’ require government allege] its [to “[t]he pre- evidence, and “duress” did not supporting words “coercion” theory of the case or conducting a more exhaus- necessary vent him from only the ‘essential facts to but examination. Confrontation crime apprise tive a defendant of “[T]he ” (cita- ef- guarantees an for charged.’ Buckley, Clause 689 F.2d at 897 cross-examination, omitted). not cross-exami- v. fective tion See also United States (9th Cir.1970) way, Markee, is effective in whatever 425 F.2d 1047 nation that extent, (“A the defense distinction is to be drawn between and to whatever Fensterer, fails to set forth the es- v. 474 indictment which wish.” See Delaware apprise a defen- 15, 20, 292, 294, necessary facts to 88 L.Ed.2d sential U.S.

439 which, imposes, Tolla, charged one of the crime United States v. dant facts, necessary though specifies (2d Cir.1986), it the conditions must be theory those specify upon which fails Green, lawful. See United States v. proved trial or the evidence facts will be 1203, 1205(9th Cir.1984)(district F.2d rest”). upon proof which the will One may not its authority” under “exceed[] purposes of the “essential facts” re- Act). Federal Probation district court has quirement is to ensure that defendant probation made Jenkins’ conditional on the charges against him description of the “a $250,225.00, payment of which is the sum prepare detail to enable him to in sufficient that a court in California awarded investors Lane, his defense....” United States in Jenkins’ “Mediator Toilet” business. (9th Cir.1985).1 against The basis of the investors’ suit The indictment this case identified apparently Jenkins was fraud. 1980), (October 13, of the offense date This condition on was outside return, specific and the loss claimed on authority. statutory the court’s Under the specified return. The indictment also provision applicable to offenses committed willfully that Jenkins “did aid and assist in 1, 1987, prior to November 18 U.S.C. preparation” claiming of a tax form 3651, the district court authority had the § that “the defendant then and there a loss require the defendant “to make restitu- knew and believed was not well [Schulte] reparation aggrieved tion or to,” parties it does not state how entitled but Jen- willfully damages kins aided and assisted Schulte. actual or loss caused the of- therefore, question, The relevant is wheth- fense for which conviction was had.” The government’s regarding er the contentions defrauded investors involved the Califor- the manner in which Jenkins “aided and nia civil suit did not suffer a loss “caused” assisted” Schulte is an “essential fact” Jen- by assisting filing act of Jenkins’ prepare kins his defense. needed $250,225.00 a fraudulent tax return. The indictment, reading improper

After Jenkins restitution condition is generally he had should have known what that sum is not a “loss caused defense, i.e., by way to show that his offense for conviction was had.” respect conduct on October $862,500 Schulte's claimed loss did not Authority b. The District Court’s on Re- against statutory prohibition violate the mand aiding might tax fraud. While it have been preferable government specify proba- for the Since the restitution condition on precise nature of Jenkins’ misconduct improper, for tion was we must remand (e.g., selling distributorship, sug- a “sham” resentencing. resentencing poses The sev- documents), gesting back-dating Jen- questions. eral Can the district court enter convincing argu- kins has failed to make a a it im- revised order of restitution? Can specificity ment that the lack of in the pose a sentence of incarceration Count indictment him the denied incarcera- II? Can it combine a sentence of prepare adequate an defense. We there- restitution tion on Count II with a modified fore hold that the indictment was suffi- order? Can it resentence on Count cient. well as II? Count 3. a Restitution as Condition Proba- 1205, Green, 735 F.2d at tion cases, held criminal court tax “[i]n $250,225.00 a. The condition may court order restitution for back- years taxes for involved convic

Although a court has discre broad probation Although tion as to the conditions of it tion.” involved a convic- Green purpose Another 1. of the "essential facts” re- Jenkins “concedes that the indictment suffi- quirement is to ensure that the defendant will jeopardy cient clause of the under the double Amendment_” subjected not a second trial for the same Fifth Lane, However, offense. 765 F.2d at 1380. 440 taxpayer, may is no

tion of a there reason not to determine the amount of restitution is to ensure that “the amount of holding persons its to cases of loss caused extend who by “proved the offense” is certainty,” with filing taxpayers assist fraudulent re- 625, Gering, 716 F.2d at and since the person taxpayer a assists a turns. Where surely district court on remand could estab- return, aggrieved filing a fraudulent by lish the amount of loss caused Jenkins’ government party is the United States certainty,” offense “with conclude by the conviction is the the loss caused may “judicially the district court on remand unpaid liability. the amount of establish” tax loss and then circuit has held that a district This court permissible order amount of restitution. up is authorized to order restitution to the Weichert, See United States v. 836 F.2d aggrieved parties amount of loss to set 769, (2d Cir.1988)(ordering 772 plea agree or in the forth the indictment remand “judicial to make a deter- ment. decisions in this circuit also Several by mination of the actual loss suffered suggest may that a court fix restitution in victims”). crime’s greater alleged an amount than the amount If “ju the district court on remand plea agreement in the indictment or if the dicially loss, establishes” the amount of tax greater “judicially amount is established.” may it then up order restitution to that Whitney, v. 785 F.2d See United States amount, unless either Schulte or Jones (9th Cir.1986),amended, 404, 824 838 F.2d paid part liability all or of the tax Cir.1988); 405 United States v. by fraudulently Schulte avoided claiming Schiek, (9th Cir.1986); 806 F.2d $862,500 loss. Restitution for a mone Black, v. United States F.2d tary by loss definition should not exceed (9th Cir.1985); United v. States Ger Thus, the total dollar amount of the loss. (9th Cir.1983). F.2d ing, 716 co-participants in while a criminal offense rule that the amount of restitution not may jointly severally be held liable for indictment, exceed the sum set forth an (here, aggrieved party the loss to an plea agreement, or judicial some formal government), United States see United finding designed satisfy the “need [to] Cauwenberghe, States Van prove[] certainty the amount of the (9th Cir.1987), the United States loss the offense.” Gering, caused 716 government permitted should not be to col lect more than its total tax loss as “restitu sum, tion.” In the district court on remand plea Jenkins did not enter into a may condition Jenkins’ agreement. The indictment states the payment of at most the actual tax loss to fraudulently amount of the loss that was government. return, claimed on the tax but it does not problematic question A more state the amount of taxes is whether Schulte avoided impose the district court on remand claiming can that loss. The district court entirely new sentence for both counts or “judicially below never established” the for Count II or it whether is limited to amount of taxes Schulte avoided fraudu adjusting the restitution condition on Jen- $862,500 lently claiming a loss for 1979. probation. kins’ This court has never di- Since the “amount of the loss” in this case rectly question addressed the of whether a indictment, plea was not established in an may district court resentence a defendant agreement, judicial or a finding, formal appeals after the court of holds that must address the of probation district court’s condition on may “judicially district court on remand improper.2 establish” the amount of loss. Since the purpose judicially-developed of the argues rules Jenkins the double limiting the means which jeopardy prohibits district courts clause the district court Green, Green, In the court stated that a court to the amount “[w]hen authorized." 735 F.2d at However, sentencing authority, (citation omitted). exceeds its the sentence is the issue be- only portion void remedy as to the rely excessive of it. The fore the court was whether it could imposition requiring pay part of a condition defendant's failure to of the restitu- excessive lawfully restitution is a reduction of tion order that restitution could have been im- course, “upon him In Of resentencing on remand. remand the district from States, 330 F.2d 27 court must resentence in accordance Kennedy v. United Cir.1964), the court held that “the process the due considerations enunciated [dis- make may not increase or more Supreme court by the Court in North Carolina trict] portions of the sentences the valid severe Hawthorne, v. Pearce.” United States v. where, here, imposed as ser- originally (3d Cir.1986). 806 F.2d See also legal portions of the sentences of the vice Pearce, North Carolina v. 395 U.S. Jenkins has been re- has commenced.”3 725-26, 2072, 2080-81, 23 L.Ed.2d recognizance pending on his own leased (1969). Thus, appeal. he has not commenced serv- Jenkins, We affirm the of conviction but ing his sentence on either count. We vacate his sentence for I and II Counts jeopardy conclude that the double therefore resentencing. remand for does not bar the district court on clause resentencing from Jenkins on ei- remand WALLACE, Judge, concurring: Circuit or counts. ther both join parts concur the result and I and argument We now address the through II.1. join part II.3.a. I decline to that, challenged only because Jenkins it dispos- II.3.b. because is not needed for portion restitution of his sentence for presented of the issues to us. II, we should remand for modi Count Having concluded that the district court’s portion fication of that of his sentence. improper, restitution condition was this may regarded court The district simply court should remand for resentenc- the sentence for components two Count Instead, ing. majority poses then (the $250,- probation, years II five hypothetical legal questions answers four order) parts restitution of a sin 225.00 might which the district court never face gle “sentencing package.” we must Since resentencing Maj. Op. Jenkins. See order, the vacate the restitution district remand, might 439. On the district court opportuni court on remand should have the impose nonmonetary decide to condition ty probation portion reconsider the of its might impose on Count II. It Moreover, II. since the sentence for Count restitution, a new order of but the defen- closely two counts involve related miscon case, might appeal. In dant not either duct, district court also have re majority’s options discussion available for the counts as garded the sentences two addition, superfluous. sug- would be single “sentencing package.”4 parts of a gest ordinarily judge Therefore, the district court on remand also remand, by spe- fully who is more advised have the to reconsider should counsel, arguments cific situ- better for Count I. its sentence See United ated to make an informed determination Pinkney, 1246 n. States appellate answering its than is an (D.C.Cir.1976) (“Where appellate hypothetical questions. own only speculate as to what sen court could imposed the trial court would have tence upon consideration of a count

absent vacated,

the conviction or sentence is later resentencing on the remain

a remand for appropriate.”).

ing, valid counts is Anderson, (9th 1987), posed probation. as a basis to revoke Resen- Cir. tencing opinion appeals was not an issue. The cannot that a who his concluded defendant fairly limiting read as the court’s resentenc- legitimate expectation sentence "has no of final ing authority and to do so would conflict with ity original placed has sentence when he States, Kennedy v. United 330 F.2d 26 Cir. appeal and those sentences in issue direct 1964). completed serving has not a valid sentence.” Relying Supreme subsequent Court’s allege counts that on October 4. Both DiFrancesco, opinion States v. U.S. in United fraudulently Jenkins assisted Schulte in claim- 117, 138-42, 426, 438-40, 66 L.Ed.2d ing losses on his tax return. (1980), the court in United States v.

Case Details

Case Name: United States v. James S. Jenkins

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 30, 1989

Citation: 884 F.2d 433

Docket Number: 87-3177

Court Abbreviation: 9th Cir.