Frascarelli v. United States Parole Commission

Case: 16-60235 Document: 00514003285 Page: 1 Date Filed: 05/23/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-60235

Fif h Circuit

FILED

May 23, 2017

ROBERT FRASCARELLI, Lyle W. Cayce

Clerk

Petitioner

v.

UNITED STATES PAROLE COMMISSION,

Respondent

Appeal from a Determination of the

United States Parole Commission

Before SMITH, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Robert Frascarelli is a federal prisoner who was transferred to the

United States from Mexico to continue serving a Mexican sentence for

“qualified homicide committed with advantage.” Pursuant to 18 U.S.C.

§ 4106A(b)(1)(A), the United States Parole Commission (the “Commission”)

determined that the federal offense most analogous to Frascarelli’s crime was

second-degree murder and analyzed his release date accordingly. Frascarelli

now appeals that determination. We affirm.

I.

Robert Frascarelli is an American citizen who killed his live-in girlfriend,

Kajia Helena Kauppinen-Conway (“Conway”), in Tijuana, Mexico on November

22, 2009. Their brief relationship appears to have been rocky from the start,

Case: 16-60235 Document: 00514003285 Page: 2 Date Filed: 05/23/2017

No. 16-60235

involving allegations of drug use, theft, and incessant fighting.

After Frascarelli killed Conway, he contacted Mexican authorities. Upon

arrival, they found Conway’s body with adhesive tape on her head and her

ankles tied together. Frascarelli explained the scene by lying to law

enforcement, telling them that armed and masked intruders arrived at

Conway’s house, threatened both of them, tied her up and killed her. The

police inspected the crime scene and noted that there were no signs of forced

entry. When the police questioned Frascarelli about how the masked men had

entered, he became visibly nervous and admitted that the doors were locked at

the time of the alleged break-in. The police also questioned him about how he

was capable of speaking to the masked men because he had earlier reported

that his mouth had been taped shut.

Frascarelli eventually confessed to killing Conway. Specifically,

Frascarelli confessed that he was fed up with Conway because she had treated

him badly. He described that before he killed her, they had argued over forty

dollars. The argument angered Frascarelli, causing him to descend the stairs

from her room on the second floor, take a hammer from a toolbox, climb back

up the stairs, and hit her in the face with the hammer “three or four times.”

When she then “fell unconscious[,] . . . [he] strangled her with [his] hands until

she could not breathe.” The autopsy report concluded that the cause of death

was strangulation.

Mexican authorities convicted Frascarelli of having committed qualified

homicide with advantage, as proscribed by Articles 123, 126, and 148 of the

Baja California State Penal Code (“Baja Penal Code”). The elements of the

offense under the Baja Penal Code are (a) the pre-existence of a life, (b) the

deprivation of that life (c) caused by delinquent conduct carried out by a party,

2

Case: 16-60235 Document: 00514003285 Page: 3 Date Filed: 05/23/2017

No. 16-60235

and (d) committed with advantage. See BAJA PENAL CODE ARTS. 123, 126, 147,

148. The Mexican appellate court found that Frascarelli’s statement that he

killed Conway was reliable and voluntary, as it was given in the public

prosecutor’s office in the presence of the official public defender. The court also

decided that the confession was corroborated and supported by witness

testimony. The court therefore concluded that Frascarelli committed the act

with advantage over Conway because she was unarmed and had fallen before

he strangled her.

Pursuant to a treaty between the United States and Mexico, Frascarelli

requested a transfer to serve his term of imprisonment in the United States.

See Molano-Garza v. U.S. Parole Comm’n, 965 F.2d 20, 22 (5th Cir. 1992)

(citing Treaty on Executions of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28

U.S.T. 7399, T.I.A.S. No. 8718). In accordance with the transfer proceedings,

a probation officer prepared a postsentence investigation report (“PSR”). The

PSR recommended to the Parole Commission that the most analogous offense

to Frascarelli’s Mexican conviction of qualified homicide committed with

advantage was second-degree murder, under 18 U.S.C. § 1111(b). In

preparation for the transfer-treaty hearing, a Parole Commission Examiner

reviewed the PSR and prepared a prehearing assessment.

The Parole Commission subsequently held a hearing before an examiner

to determine Frascarelli’s release date. At the hearing, Frascarelli recounted

a third version of events leading to Conway’s death. He testified that, on the

day of the killing, he and Conway had been arguing, and she demanded that

he purchase more vodka for her. When he refused, the argument escalated

from a verbal dispute to a physical altercation with Conway exploding in fury

and lunging toward him with a pair of rusty scissors. Frascarelli also stated

3

Case: 16-60235 Document: 00514003285 Page: 4 Date Filed: 05/23/2017

No. 16-60235

that he tried to disarm Conway and hit her in the ribs, causing her to fall down

a spiral staircase and die. Just as the police recognized Frascarelli’s initial

fabrication, the examiner noticed inconsistencies in Frascarelli’s new version

of events. For example, contrary to the field crime report, Frascarelli asserted

that Conway’s body was at the bottom of the stairs when the police arrived.

The examiner determined that the description of the crime in the

Mexican field crime report was more consistent with the official version in the

PSR than the version Frascarelli provided at the hearing. She also found that

the official Mexican documents were more credible than Frascarelli’s new story

about Conway falling down the stairs. Based on these conclusions, the

examiner recommended that the most analogous federal offense to the Mexican

conviction was second-degree murder. She found that Frascarelli acted with

malice by both stepping away from the argument to obtain a hammer he then

used to hit Conway and by proceeding to strangle her and tie her up in order

to support a fabricated story that he told the police. The Commission adopted

the examiner’s recommendation. Frascarelli appeals that determination.

II.

The Commission had jurisdiction to determine Frascarelli’s release date

under 18 U.S.C. § 4106A(b)(1)(A), which states, “[t]he United States Parole

Commission shall . . . determine a release date and a period and conditions of

supervised release for an offender transferred to the United States to serve a

sentence of imprisonment, as though the offender were convicted in a United

States district court of a similar offense.”

We have jurisdiction under 18 U.S.C. § 4106A(b)(2)(A), which allows for

direct appeals “to the . . . court of appeals for the circuit in which the offender

is imprisoned” if the notice of appeal is filed “not later than 45 days after receipt

4

Case: 16-60235 Document: 00514003285 Page: 5 Date Filed: 05/23/2017

No. 16-60235

of” the Commission’s notice of determination. Because Frascarelli was

incarcerated at FCI La Tuna, located in Anthony, Texas, when the Commission

made its determination, and because Frascarelli received notice of the

Commission’s determination on April 1, 2016 and filed his appeal from the

determination on April 15, 2016, we have jurisdiction to hear this appeal.

“[We] exercise[] review over a Transfer Treaty prisoner’s sentence as [we]

would over that of an ordinary federal prisoner sentenced in district court.”

Bender v. U.S. Parole Comm’n, 802 F.3d 690, 693 (5th Cir.), cert. denied, 136

S. Ct. 493 (2015) (citing § 4106A(b)(2)(A); Molano–Garza, 965 F.2d at 23). “The

Parole Commission’s construction of statutory law and the Sentencing

Guidelines is reviewed de novo[,] and its factual findings are reviewed for clear

error.” Id. (citing Molano–Garza, 965 F.2d at 23); see also Navarrete v. U.S.

Parole Comm’n, 34 F.3d 316, 318 (5th Cir. 1994). “We will reverse under the

clearly erroneous standard ‘only if we have a definite and firm conviction that

a mistake has been committed.’” In re Dall. Roadster, Ltd., 846 F.3d 112, 127

(5th Cir. 2017) (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375

(5th Cir. 2000)).

III.

“In determining a release date for a transfer offender, the Commission

considers the recommendations of the U.S. Probation Service and any

documents from the transferring country.” Lizama v. U.S. Parole Comm’n, 245

F.3d 503, 505 (5th Cir. 2001) (citing § 4106A(b)(1)(B)). The Commission

determines

[t]he applicable offense guideline provision . . . by selecting

the offense in the U.S. Code that is most similar to the

offense for which the transferee was convicted in the foreign

court. In so doing, the Commission considers itself required

by law and treaty to respect the offense definitions contained

5

Case: 16-60235 Document: 00514003285 Page: 6 Date Filed: 05/23/2017

No. 16-60235

in the foreign criminal code under which the prisoner was

convicted, as well as the official documents supplied by the

foreign court.

28 C.F.R. § 2.68(a)(4); see also Lizama, 245 F.3d at 506–07.

The analysis may involve more than simply comparing the offense

definitions. “[T]he Commission shall take into account the offense definition

under foreign law . . . and the underlying circumstances of the offense

behavior.” Lizama, 245 F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); see also

Kleeman v. U.S. Parole Comm’n, 125 F.3d 725, 732 n.9 (9th Cir. 1997).

“Disputes of material fact shall be resolved by a preponderance of the evidence

. . . .” 28 C.F.R. § 2.68(h)(5). The Commission does not re-sentence the

transferee, nor does it revisit questions of guilt or innocence; instead, it simply

converts the foreign sentence into a determination of release date and a period

and conditions of supervised release. See Molano-Garza, 965 F.2d at 22. Here,

the Commission was tasked with converting a Mexican conviction under

Article 123 of the Baja Penal Code into a parallel conviction under the laws of

the United States.

Under the Baja Penal Code, “‘[w]homever deprives another of his life

commits the crime of homicide.’” Lizama, 245 F.3d at 505 (quoting BAJA PENAL

CODE ART. 123). The Code establishes three ranges of punishment for

homicide. Id. Qualified homicide is defined as a killing committed with

6

Case: 16-60235 Document: 00514003285 Page: 7 Date Filed: 05/23/2017

No. 16-60235

premeditation, advantage, 1 malice, 2 or treachery. Id. (quoting BAJA PENAL

CODE ART. 147).

By comparison, second-degree murder under U.S. law requires a finding

that a human being was killed “with malice aforethought.” 18 U.S.C. § 1111(a).

“Malice” is a term of art that encompasses three mental states: “(1) intent to

kill; (2) intent to do serious bodily injury; and (3) the existence of a ‘depraved

heart,’ another term of art that refers to a level of extreme recklessness and

wanton disregard for human life.” United States v. Browner, 889 F.2d 549,

551–52 (5th Cir. 1989). Voluntary manslaughter is defined in 18 U.S.C.

§ 1112(a) as: “the unlawful killing of a human being without malice . . . [u]pon

a sudden quarrel or heat of passion.” If malice is present, then the crime is

second-degree murder; if malice is absent, the crime is manslaughter. United

States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982). “The fact that distinguishes

manslaughter from murder is the existence of malice.” Id.; see also 18 U.S.C.

§ 1112.

1 The Baja Penal Code defines advantage in four ways:

I. When the criminal is physically stronger than the victim and the

victim is not armed.

II. When the criminal is in a superior position because of the

weapons that he or she uses, because of his/her greater skill in

handling such weapons, or because of the number of individuals

accompanying him/her.

III. When the criminal makes use of a means that weakens the

victim’s defenses, or

IV. When the victim is unarmed or has fallen, and the criminal is

armed or standing up.

BAJA PENAL CODE ART. 148.

2 “The term ‘malice’ has a different meaning under the Baja Penal Code, than in

United States jurisprudence.” Lizama, 245 F.3d at 505 n.1 (citing Kleeman, 125 F.3d at 731

n.7).

7

Case: 16-60235 Document: 00514003285 Page: 8 Date Filed: 05/23/2017

No. 16-60235

The Mexican court found that Frascarelli committed homicide with

advantage under the Baja Penal Code. The Mexican court supported its

conclusion that Frascarelli committed the crime with advantage under the

Baja Penal Code’s fourth definition of advantage—that when Frascarelli killed

Conway, she was unarmed and had fallen while he was armed and standing.

Frascarelli argues that the Commission erred in finding that second-

degree murder was the federal offense most analogous to his Mexican crime.

He first contends that the Mexican conviction alone did not require a finding

that a human being was killed with malice aforethought. Frascarelli also

argues that the underlying facts would not support a conviction of second-

degree murder.

Frascarelli’s first contention is correct—a conviction of qualified

homicide committed with advantage under the Baja Penal Code requires no

finding that a defendant acted with malice. Malice exists if a defendant acts

with a certain mental state, see Browner, 889 F.2d at 551–52, whereas

homicide committed with advantage exists based on facts surrounding the

killing, see BAJA PENAL CODE ART. 148. Therefore, comparing the offense

definitions alone is insufficient to reach a final conclusion. See Lizama, 245

F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); Kleeman, 125 F.3d at 732 n.9 (“Given

the differences between the Baja Penal Code and the United States Code with

respect to voluntary manslaughter, the Commission was required to evaluate

the underlying circumstances of the offense behavior, not simply the offense

definition under foreign law.”). Therefore, we must look to the underlying

circumstances of Frascarelli’s behavior to come to our conclusion. In doing so,

however, we reject Frascarelli’s argument that the evidence presented in the

8

Case: 16-60235 Document: 00514003285 Page: 9 Date Filed: 05/23/2017

No. 16-60235

Mexican court’s judgment supports only a conviction of voluntary

manslaughter and that the Commission erred in concluding otherwise.

In support of that argument, Frascarelli asserts that he and Conway had

a volatile relationship—that they constantly argued, that she ordered him

around, and that they were addicted to drugs and alcohol. According to

Frascarelli, after suffering months of abuse from their dysfunctional

relationship, he snapped, “got a hammer, hit her with it, and strangled her

until she was dead.” Frascarelli’s version of events is that of a lovers’ quarrel

gone wrong—that Conway provoked him by her abusive treatment, and that,

in a moment of passion, he killed her, thus acting without malice and

committing voluntary manslaughter. Frascarelli further asserts that there is

no evidence that the pre-killing argument had ended or that enough time had

passed between Conway’s provocation and her death for Frascarelli to reflect

on his course of action.

The Commission is required to credit the Mexican court’s version of

events. See 28 C.F.R. § 2.68(a)(4); Lizama, 245 F.3d at 506–07. But the

Commission may make factual findings as to the underlying circumstances of

the crime that are not inconsistent with the Mexican court’s determinations.

See Lizama, 245 F.3d at 505 (quoting 28 C.F.R. § 2.68(g)); 28 C.F.R.

§ 2.68(h)(5). The question for the Commission, therefore, was whether these

underlying circumstances are more consistent with a finding of second-degree

murder (with malice) or voluntary manslaughter (in the heat of passion).

A killing in the heat of passion occurs when “the defendant loses his

normal self-control as a result of circumstances that would provoke such a

passion in an ordinary person, but which did not justify the use of deadly force.”

Browner, 889 F.2d at 552. “The malice that would otherwise attach is negated

9

Case: 16-60235 Document: 00514003285 Page: 10 Date Filed: 05/23/2017

No. 16-60235

by the fact that the intentional killing occurred in the heat of passion in

response to a sufficient provocation.” Id. The Model Penal Code “defines a

heat-of-passion killing . . . as ‘a homicide which would otherwise be murder . .

. committed under the influence of extreme mental or emotional disturbance

for which there is reasonable explanation or excuse. The reasonableness of

such explanation . . . shall be determined from the viewpoint of a person in the

actor’s situation . . . .’” United States v. Delaney, 717 F.3d 553, 558 (7th Cir.

2013) (quoting MODEL PENAL CODE § 210.3(1)(b) (AM. LAW INST. 1962)).

The Government typically bears “the burden of proving absence of heat

of passion beyond a reasonable doubt.” Id. at 559 (citing Mullaney v. Wilbur,

421 U.S. 684, 703–04 (1975); United States v. Martinez, 988 F.2d 685, 690 (7th

Cir. 1993); United States v. Lofton, 776 F.2d 918, 921–22 (10th Cir. 1985)). In

other words, “the malice element of the traditional offense of murder implicitly

forces prosecutors to disprove the existence of adequate provocation when the

evidence suggests that it may be present.” Browner, 889 F.2d at 552. But “the

defendant [is required] to make an initial showing that the defense has some

evidentiary support; only then is the burden of proof beyond a reasonable doubt

laid on the government.” Delaney, 717 F.3d at 559 (citing United States v.

Begay, 673 F.3d 1038, 1045 (9th Cir. 2011) (en banc); Lofton, 776 F.2d at 920)).

Another way of describing the process is that “[t]he jury ha[s] to find malice

beyond a reasonable doubt in order to convict the defendant of murder, and so

evidence that [the defendant] acted in the heat of passion and therefore

10

Case: 16-60235 Document: 00514003285 Page: 11 Date Filed: 05/23/2017

No. 16-60235

without malice would if believed require the jury to acquit him of the charge of

murder.” Id. 3

Hitting a defendant in the face with a hammer, followed by strangling

her, would usually show one of the three kinds of malice—“(1) intent to kill;

(2) intent to do serious bodily injury; [or] (3) . . . extreme recklessness and

wanton disregard for human life.” Browner, 889 F.2d at 552. We conclude here

that sufficient evidence was presented for a jury to find that Frascarelli acted

with malice and did not kill Conway in the heat of passion.

First, there is scant evidence that Conway said or did anything during

their argument over money to constitute adequate provocation that would

provoke a reasonable person to kill. The only evidence of provocation that the

Commission found credible was evidence both that they were arguing about

money and that Frascarelli was fed up with her. Second, there was evidence,

and Frascarelli himself admits, that he made up the story about the masked

men. Such fabrication tends to support a conclusion that Frascarelli invented

the story to deflect attention from his malicious crime. Indeed, Frascarelli’s

having told three different versions of events is inconsistent with having acted

with malice when he killed Conway. Finally, the fact that Frascarelli walked

down and up a flight of stairs to obtain the hammer, as well as Frascarelli’s

subsequent decision to strangle Conway, is evidence that the heat of passion

had time to “cool.” See Collins v. United States, 150 U.S. 62, 65 (1893); see also

3 Whether a criminal defendant committed malice is typically a fact question for the

jury. See United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986); see also Delaney, 717

F.3d at 555–58; Collins, 690 F.2d at 437; United States v. McRae, 593 F.2d 700, 704–05 (5th

Cir. 1979); FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 2.53 (2015).

Frascarelli argues that the Ninth Circuit applied a de novo standard of review to

determine whether the alleged acts supported second-degree murder. Kleeman, 125 F.3d at

730 n.6, 732. However, that case involved a determination that there was no evidence to

support a conclusion that the petitioner acted with malice. Id. at 732.

11

Case: 16-60235 Document: 00514003285 Page: 12 Date Filed: 05/23/2017

No. 16-60235

Collins, 690 F.2d at 436; People v. Edgmon, 73 Cal. Rptr. 634, 639 (Cal. Ct.

App. 1968). Therefore, we conclude that the Commission did not clearly err in

finding that Frascarelli acted with malice. Accordingly, we affirm the Parole

Commission’s transfer-treaty determination. 4

AFFIRMED.

4 At oral argument, Frascarelli’s counsel asserted that when a set of facts could result

in a determination of two similar U.S. offenses, due process requires that the Commission

choose the least culpable similar offense. Counsel’s rationale for this rule is that, if one of

the transfer defendants were to have been convicted by a U.S. court, due process would

require a prosecutor to prove each element beyond a reasonable doubt.

But this contention is inconsistent with the relevant federal regulations and statutes.

In fact, as counsel admitted, her argument is not supported by any case law. Furthermore,

due process does not require the Commission to choose the least culpable offense because a

transfer-treaty defendant is not convicted according to U.S. law. His or her foreign

convictions are merely converted. See Molano-Garza, 965 F.2d at 22. Finally, defendants

are given sufficient due process protection by the fact that the transfer sentence may not be

longer than the sentence imposed in the transferor country. 18 U.S.C. § 4106A(b)(C). We

therefore reject this argument.

12