Opposition Brief — Rodrigo Pablo Lozano, Petitioner v. United States
Supreme Court briefJan 15, 2020
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No. 19-5979
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
RODRIGO PABLO LOZANO, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
RICHARD E. ZUCKERMAN
Principal Deputy Assistant
Attorney General
S. ROBERT LYONS
ALEXANDER P. ROBBINS
GREGORY S. KNAPP
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1.
Whether the district court plainly erred in ordering
restitution under the Mandatory Victims Restitution Act of 1996,
18 U.S.C. 3663A, based on the court’s finding of the victim’s loss.
2.
Whether
the
district
court
plainly
erred,
during
petitioner’s trial for conspiracy to defraud the United States by
obtaining payment of false claims, in violation of 18 U.S.C. 286,
by instructing the jury that the element of knowledge of the
submission of the false claims could be established by proof of
deliberate avoidance.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 19-5979
RODRIGO PABLO LOZANO, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-3) is not
published in the Federal Reporter but is reprinted at 769 Fed.
Appx. 438.
JURISDICTION
The judgment of the court of appeals was entered on April 29,
2019.
A petition for rehearing was denied on June 14, 2019 (Pet.
App. 4).
The petition for a writ of certiorari was filed on
September 12, 2019.
The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
2
STATEMENT
Following a jury trial in the United States District Court
for the Central District of California, petitioner was convicted
of conspiracy to defraud the United States by obtaining payment of
false claims, in violation of 18 U.S.C. 286.
Judgment 1.
The
district court sentenced petitioner to 120 months of imprisonment,
to be followed by three years of supervised release.
1-2.
Judgment
The court also ordered petitioner to pay $23,094,300 in
restitution.
Judgment 1.
The court of appeals affirmed.
Pet.
App. 1-3.
1.
Petitioner owned and operated an income tax preparation
business,
Lozano
&
Associates
--
California.
Gov’t C.A. Br. 1, 5.
the
Revenue
Internal
Number
and
an
Service
Electronic
Ayuda
in
Oxnard,
Petitioner had obtained from
(IRS)
Filing
(Ayuda),
a
Preparer
Identification
Identification
Number,
that
authorized him to file tax returns electronically on behalf of
clients.
Id. at 5.
Petitioner hired several employees to assist
in processing client paperwork, but petitioner was the only person
at Ayuda who filed tax returns.
Although
Ayuda
prepared
Id. at 6.
some
legitimate
tax
returns
for
individual clients, most of Ayuda’s business during 2011 and 2012
consisted of preparing fraudulent tax returns for “marketers,” who
brought in false tax documentation for multiple taxpayers.
C.A. Br. 7-8.
Gov’t
The false documentation included Forms W-2 that
3
reported the same amount of wages for multiple taxpayers, as well
as identification documents that used the same photo for different
people.
Id. at 8-9.
Ayuda employees complained to petitioner
about the false documentation provided by the marketers, but
petitioner told them not to worry about it.
Id. at 9.
Petitioner
signed and submitted the false returns that had been prepared for
the marketers.
Id. at 9-10.
All of the fraudulent returns prepared for the marketers
claimed tax refunds.
Gov’t C.A. Br. 8.
During 2011 and 2012,
petitioner submitted more than 12,000 fraudulent returns that
claimed a total of $56.5 million in refunds.
Id. at 14-15.
The
IRS paid out more than $23 million of those fraudulent refund
claims.
Id. at 23.
Petitioner directed the IRS to pay the refunds
by sending a check to his residence or business, or by depositing
the funds into a bank account he controlled.
Id. at 11-12.
After
receiving the refunds from the IRS, petitioner personally gave
those funds in cash to the marketers who had provided the false
taxpayer information.
Id. at 12.
Petitioner, for his part,
received at least $1,000,000 in fees for preparing the fraudulent
returns for the marketers.
See D. Ct. Doc. 144, at 3 (Dec. 7,
2016); Presentence Investigation Report (PSR) ¶ 15.
2.
A federal grand jury charged petitioner with conspiracy
to defraud the United States by obtaining payment of false claims,
in violation of 18 U.S.C. 286.
Indictment 1-10.
During trial,
4
petitioner testified in his own defense, portraying himself as a
“big picture guy” who spent little time at Ayuda and left the dayto-day operations to his employees. Gov’t C.A. Br. 16. Petitioner
claimed
that
documentation.
he
trusted
the
clients
to
bring
in
proper
tax
Ibid.
Most of the jury instructions given by the district court
were jointly proposed and agreed to by the parties.
Br. 19.
Gov’t C.A.
The jury was instructed that the elements of the Section
286 conspiracy offense were:
First, * * * the defendant entered into a conspiracy
to obtain payment or to aid in obtaining payment of one or
more claims against an agency of the United States,
specifically, the Internal Revenue Service.
Second,
fraudulent.
the
claims
were
false,
fictitious,
or
And, third, the defendant knew that the claims were
false, fictitious, or fraudulent.
Ibid. (citation omitted). Regarding the first element, the agreedupon jury instructions stated that “[o]ne becomes a member of a
conspiracy by willfully participating in the unlawful plan with
the intent to advance some purpose of the conspiracy.”
Id. at
19-20 (citation omitted; brackets in original).
The
government
also
proposed
a
deliberate-avoidance
jury
instruction regarding petitioner’s knowledge that many of the tax
returns that he prepared were fraudulent, which stated that:
You may find that the defendant acted knowingly if you
find beyond a reasonable doubt that the defendant:
5
1.
was aware of a high probability that the tax returns
he was filing, agreeing to file, or causing others
to file were false, fictitious or fraudulent, and
2.
he deliberately avoided learning the truth.
You may not find such knowledge, however, if you find
that the defendant actually believed that the tax returns
were not false, fictitious, or fraudulent, or if you find
that the defendant was simply careless.
Gov’t C.A. Br. 20 (citation omitted).
Petitioner objected that a deliberate-avoidance instruction
was “unnecessary” in light of the evidence, but he did not object
to the form of the instruction proposed by the government.
Gov’t
C.A. Br. 20 (citation omitted). Nor did petitioner argue generally
that a deliberate-avoidance instruction is inconsistent with the
requirements of a conspiracy offense.
The district court gave the
proposed deliberate-avoidance instruction.
found petitioner guilty.
Id. at 22.
The jury
Judgment 1.
The Probation Office reported that the tax loss intended by
petitioner’s conduct, for purposes of calculating his recommended
sentencing range under the Sentencing Guidelines, was $56,481,566.
D. Ct. Doc. 159, at 3 (Apr. 4, 2017).
That amount represented the
total refunds claimed on 12,825 returns filed by petitioner that
had been identified as fraudulent.
of
the
returns
Investigative
filed
Analyst
by
Id. at 4-5.
petitioner
reviewed
were
the
To identify which
fraudulent,
returns
for
an
IRS
common
characteristics of fraud, including the use of repeated mailing
addresses, wage and withholding amounts, and employer identities.
6
For all 12,825 returns identified as fraudulent, the IRS confirmed
that the wage amounts reported on the returns were invalid by
checking the reported amounts against Social Security records.
Id. at 5.
The loss calculation excluded an additional 7,198
returns filed by petitioner during 2011 and 2012 that could not be
verified as fraudulent.
Id. at 7.
Based on an intended loss of $56.5 million, petitioner’s
advisory Sentencing Guidelines range would have been 168 to 210
months of imprisonment, but the statutory maximum for petitioner’s
offense was 120 months.
Gov’t C.A. Br. 23-24; see 18 U.S.C. 286.
The district court sentenced petitioner to the statutory maximum
term, finding, among other things, that petitioner displayed “a
total lack of remorse” and was “one of the most arrogant defendants
[the court had] ever faced in
* * *
Gov’t C.A. Br. 27-28 (citation omitted).
20 years on the bench.”
The court also ordered
petitioner to pay $23,094,300 in restitution to the IRS, which
represented the portion of the $56.5 million in false refund claims
that the IRS had actually paid.
Id. at 23.
Although petitioner
objected generally to the amount of loss and restitution reported
in the PSR, see, e.g., Pet. C.A. Br. 26, he did not argue before
the district court that any facts supporting a restitution award
must be found by a jury beyond a reasonable doubt.
3.
Petitioner appealed.
As relevant here, he argued that,
under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district
7
court’s restitution order was invalid because it was not based on
facts found by a jury beyond a reasonable doubt.
26.
Pet. C.A. Br.
Petitioner also argued that the court had erred by giving the
deliberate-avoidance
instruction,
on
the
theory
that
it
was
inconsistent with the mens rea for the conspiracy offense with
which he was charged.
Id. at 9-13.
The government’s answering
brief observed that petitioner had raised neither his Apprendibased challenge to restitution nor his challenge to the deliberateavoidance jury instruction in the district court, and maintained
that each was subject to plain-error review.
Gov’t C.A. Br.
30-31, 58.
The court of appeals affirmed.
Pet. App. 1-3.
The court
rejected petitioner’s Apprendi argument, relying on its prior
decision in United States v. Green, 722 F.3d 1146, 1150 (9th Cir.),
cert.
denied,
571
U.S.
1025
(2013),
which
determined
that
“restitution is not a question that is subject to the protections
of Apprendi.”
Pet. App. 3.
The court also upheld the district
court’s decision to give a deliberate-avoidance instruction at
trial.
732
Id. at 2.
F.3d
1113,
The court cited United States v. Ramos-Atondo,
1120
(9th
Cir.
2013),
and
United
States
v.
Nicholson, 677 F.2d 706, 710-711 (9th Cir. 1982), both of which
had approved the use of a deliberate-avoidance instruction in a
case where the defendant was charged with a conspiracy offense.
Pet. App. 2.
8
ARGUMENT
Petitioner contends (Pet. 6-9) that Apprendi v. New Jersey,
530 U.S. 466 (2000), which held that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt,” id. at 490, applies
to the calculation of restitution.
rejected that contention.
The court of appeals correctly
As petitioner acknowledges (Pet. 6),
every court of appeals to consider the question has determined
that the imposition of restitution does not implicate Apprendi.
And in any event, this case would be a poor vehicle for addressing
the first question presented because petitioner forfeited his
Apprendi argument by failing to raise it in the district court,
and thus any appellate review would solely be for plain error.
This Court has recently and repeatedly denied petitions for a writ
of
certiorari
restitution,
preserved. 1
seeking
review
of
whether
Apprendi
including
in
cases
where
the
issue
applies
had
to
been
The same result is warranted here.
See, e.g., Budagova v. United States, 140 S. Ct. 161
(2019) (No. 18-8938); Ovsepian v. United States, 140 S. Ct. 157
(2019) (No. 18-7262); Hester v. United States, 139 S. Ct. 509
(2019) (No. 17-9082); Petras v. United States, 139 S. Ct. 373
(2018) (No. 17-8462); Fontana v. United States, 138 S. Ct. 1022
(2018) (No. 17-7300); Alvarez v. United States, 137 S. Ct. 1389
(2017) (No. 16-8060); Patel v. United States, 137 S. Ct. 184 (2016)
(No. 16-5129); Santos v. United States, 136 S. Ct. 1689 (2016)
(No. 15-8471); Roemmele v. United States, 136 S. Ct. 255 (2015)
1
9
Petitioner
separately
contends
(Pet.
10-11)
that
the
deliberate-avoidance instruction in his case is inconsistent with
the requirements of a conspiracy offense.
That contention lacks
merit, and petitioner identifies no conflict in the court of
appeals on that issue.
In any event, this case would be a poor
vehicle to consider petitioner’s challenge to the deliberateavoidance
instruction
that
was
given
at
his
trial
because
petitioner failed to raise that challenge before the district
court.
This Court has previously denied petitions for a writ of
certiorari challenging the use of a deliberate-avoidance theory of
mens rea in a conspiracy case. 2
1.
a.
The
court
of
The same result is warranted here.
appeals
correctly
Apprendi does not apply to restitution.
determined
that
Pet. App. 3; see United
States v. Green, 722 F.3d 1146, 1151 (9th Cir.), cert. denied, 571
U.S. 1025 (2013).
In Apprendi, this Court held that any fact other
(No. 15-5507); Gomes v. United States, 136 S. Ct. 115 (2015)
(No. 14-10204); Printz v. United States, 136 S. Ct. 91 (2015)
(No. 14-10068); Johnson v. United States, 135 S. Ct. 2857 (2015)
(No. 14-1006); Basile v. United States, 575 U.S. 904 (2015)
(No. 14-6980); Ligon v. United States, 574 U.S. 1182 (2015)
(No. 14-7989); Holmich v. United States, 574 U.S. 1121 (2015)
(No. 14-337); Roscoe v. United States, 572 U.S. 1151 (2014)
(No. 13-1334); Green v. United States, 571 U.S. 1025 (2013)
(No. 13-472); Read v. United States, 569 U.S. 1031 (2013)
(No. 12-8572); Wolfe v. United States, 569 U.S. 1029 (2013)
(No. 12-1065).
See Datta v.
(No. 13-440); Halat v.
(No. 99-1511).
2
United
United
States,
States,
571 U.S. 992
530 U.S. 1229
(2013)
(2000)
10
than a prior conviction that increases the penalty for a crime
beyond the prescribed statutory maximum must be proved beyond a
reasonable doubt and found by a jury.
530 U.S. at 490; see United
States v. Cotton, 535 U.S. 625, 627 (2002) (making clear that, in
a federal prosecution, “such facts must also be charged in the
indictment”).
The “‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.”
Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis omitted).
The district court ordered petitioner to pay restitution
pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA),
18 U.S.C. 3663A.
The MVRA provides that, “when sentencing a
defendant convicted of an offense described in subsection (c),”
which includes fraud offenses, “the court shall order, in addition
to
* * *
make
any other penalty authorized by law, that the defendant
restitution
to
the
victim
of
the
offense.”
3663A(a)(1); see also 18 U.S.C. 3663A(c)(1)(A)(ii).
18
U.S.C.
The MVRA
requires that restitution be ordered “in the full amount of each
victim’s losses.”
18 U.S.C. 3664(f)(1)(A); see 18 U.S.C. 3663A(d)
(“An order of restitution under this section shall be issued and
enforced in accordance with section 3664.”); see also 18 U.S.C.
3663A(b)(1) (restitution order shall require return of property or
payment of an amount equal to the value of lost or destroyed
property).
11
By requiring restitution of a specific sum -- “the full amount
of each victim’s losses” -- rather than prescribing a maximum
amount that may be ordered, the MVRA establishes an indeterminate
framework.
18 U.S.C. 3664(f)(1)(A); see, e.g., United States v.
Day, 700 F.3d 713, 732 (4th Cir. 2012) (“Critically,
* * *
there
is no prescribed statutory maximum in the restitution context; the
amount
of
restitution
that
a
court
may
order
is
instead
indeterminate and varies based on the amount of damage and injury
caused
by
the
offense.”)
(emphasis
omitted),
cert.
denied,
569 U.S. 959 (2013); United States v. Reifler, 446 F.3d 65, 118-120
(2d Cir. 2006) (observing that the MVRA “is an indeterminate
system”)
(citing
restitution
cases).
statutes,
the
In
other
jury’s
words,
pursuant
conviction
to
the
“authoriz[es]
restitution of a specific sum, namely the full amount of each
victim’s loss.”
United States v. Leahy, 438 F.3d 328, 337 (3d
Cir.) (en banc) (internal quotation marks omitted), cert. denied,
549 U.S. 1071 (2006).
And when a sentencing court determines that
loss amount, it “is merely giving definite shape to the restitution
penalty [that is] born out of the conviction,” not “imposing a
punishment
facts.”
beyond
that
authorized
by
jury-found
or
admitted
is
imposed
part
Ibid.
Moreover,
while
restitution
as
of
a
defendant’s criminal conviction, Pasquantino v. United States,
544 U.S. 349, 365 (2005), “[r]estitution is, at its essence, a
12
restorative remedy that compensates victims for economic losses
suffered as a result of a defendant’s criminal conduct,” Leahy,
438 F.3d at 338.
is
* * *
“The purpose of restitution under the MVRA
* * *
to make the victim[ ] whole again by restoring to him
or her the value of the losses suffered as a result of the
defendant’s crime.”
United States v. Hunter, 618 F.3d 1062, 1064
(9th Cir. 2010) (citations and internal quotation marks omitted;
brackets in original). In that additional sense, restitution “does
not transform a defendant’s punishment into something more severe
than that authorized by pleading to, or being convicted of, the
crime charged.”
Leahy, 438 F.3d at 338.
Every court of appeals to have considered the question has
determined that the rule of Apprendi does not apply to restitution,
whether
ordered
under
the
MVRA
or
the
other
primary
federal
restitution statute, the Victim and Witness Protection Act of 1982,
18 U.S.C. 3663.
See, e.g., United States v. Churn, 800 F.3d 768,
782 (6th Cir. 2015); United States v. Rosbottom, 763 F.3d 408, 420
(5th Cir. 2014), cert. denied, 574 U.S. 1078 (2015); Day, 700 F.3d
at 732 (4th Cir.); United States v. Brock-Davis, 504 F.3d 991, 994
n.1 (9th Cir. 2007); United States v. Milkiewicz, 470 F.3d 390,
403-404 (1st Cir. 2006); Reifler, 446 F.3d at 114-120 (2d Cir.);
United States v. Williams, 445 F.3d 1302, 1310-1311 (11th Cir.
2006), abrogated on other grounds by United States v. Lewis, 492
F.3d 1219, 1221-1222 (11th Cir. 2007) (en banc); Leahy, 438 F.3d
13
at 337-338 (3d Cir.); United States v. Visinaiz, 428 F.3d 1300,
1316 (10th Cir. 2005), cert. denied, 546 U.S. 1123 (2006); United
States v. Carruth, 418 F.3d 900, 902-904 (8th Cir. 2005); United
States v. George, 403 F.3d 470, 473 (7th Cir.), cert. denied,
546 U.S. 1008 (2005).
Those courts of appeals have relied primarily on the absence
of a statutory maximum for restitution in reasoning that, when the
court fixes the amount of restitution based on the victim’s losses,
it is not increasing the punishment beyond that authorized by the
conviction.
See, e.g., Leahy, 438 F.3d at 337 n.11 (“[T]he jury’s
verdict automatically triggers restitution in the ‘full amount of
each victim’s losses.’”) (quoting 18 U.S.C. 3664(f)(1)(A)).
Some
courts have additionally reasoned that “restitution is not a
penalty for a crime for Apprendi purposes,” or that, even if
restitution is criminal, its compensatory purpose distinguishes it
from
purely
punitive
measures.
United
States
v.
LaGrou
Distribution Sys., Inc., 466 F.3d 585, 593 (7th Cir. 2006); see
also Leahy, 438 F.3d at 337-338; Visinaiz, 428 F.3d at 1316;
Carruth, 418 F.3d at 904;
b.
Contrary
to
petitioner’s
suggestion
(Pet.
6),
this
Court’s holding in Southern Union Co. v. United States, 567 U.S.
343 (2012), that “the rule of Apprendi applies to the imposition
of criminal fines,” id. at 360, does not require applying Apprendi
to restitution.
In Southern Union, the Court found that a $6
14
million criminal fine imposed by the district court -- which was
well above the $50,000 fine that the defendant argued was the
maximum supported by the jury’s verdict -- violated the Sixth
Amendment.
criminal
Id.
fines,
at
347-348.
which
are
Southern
“undeniably”
Union
considered
imposed
penalties in order to punish illegal conduct.
as
only
criminal
Id. at 350.
The
Court had no occasion to, and did not, address restitution, which
has compensatory and remedial purposes that fines do not, and which
is
imposed
statutory
pursuant
maximum.
to
an
indeterminate
Indeed,
Southern
scheme
that
lacks
Union
supports
a
the
distinction between restitution under the MVRA and the type of
sentences subject to Apprendi because, in observing that many fines
during the Founding Era were not subject to concrete caps, the
Court reaffirmed that there cannot “be an Apprendi violation where
no maximum is prescribed.”
Id. at 353.
Unlike the statute in
Southern Union, the MVRA sets no maximum amount of restitution,
but rather requires that restitution be ordered in the total amount
of
the
victims’
losses.
18
U.S.C.
3663A(b)(1)
and
(d),
3664(f)(1)(A); see Day, 700 F.3d at 732 (stating that, “in Southern
Union itself, the Apprendi issue was triggered by the fact that
the district court imposed a fine in excess of the statutory
maximum that applied in that case,” and distinguishing restitution
on the ground that it is not subject to a “prescribed statutory
maximum”) (emphasis omitted).
15
Since Southern Union, at least seven courts of appeals have
considered in published opinions whether to overrule their prior
precedents declining to extend the Apprendi rule to restitution.
Each determined, without dissent, that Southern Union did not call
its preexisting analysis into question.
See United States v.
Sawyer, 825 F.3d 287, 297 (6th Cir.) (reasoning that “Southern
Union did nothing to call into question the key reasoning” of prior
circuit precedent), cert. denied, 137 S. Ct. 386 (2016);
United
States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015) (finding
“nothing in the Southern Union opinion leading us to conclude that
our controlling precedent
* * *
was implicitly overruled”);
United States v. Bengis, 783 F.3d 407, 412-413 (2d Cir. 2015)
(“adher[ing]” to the court’s prior precedent after concluding that
“Southern Union is inapposite”); Green, 722 F.3d at 1148-1149 (9th
Cir.); United States v. Read, 710 F.3d 219, 231 (5th Cir. 2012)
(per curiam), cert. denied, 569 U.S. 1031 (2013); United States v.
Wolfe, 701 F.3d 1206, 1216-1217 (7th Cir. 2012), cert. denied,
569 U.S. 1029 (2013); Day, 700 F.3d at 732 (4th Cir.) (explaining
that
the
“logic
of
Southern
Union
actually
reinforces
the
correctness of the uniform rule adopted in the federal courts”
that Apprendi does not apply because restitution lacks a statutory
maximum); see also United States v. Kieffer, 596 Fed. Appx. 653,
664 (10th Cir. 2014), cert. denied, 135 S. Ct. 2825 (2015); United
16
States v. Basile, 570 Fed. Appx. 252, 258 (3d Cir. 2014), cert.
denied, 575 U.S. 904 (2015).
c.
Petitioner is also incorrect in contending (Pet. 7) that
the rationale adopted by the courts of appeals is undercut by this
Court’s holding in Alleyne v. United States, 570 U.S. 99 (2013).
Alleyne held
that
Apprendi
applies
to
facts
that
increase
a
mandatory minimum sentence, explaining that Apprendi’s definition
of “elements” that must be found by a jury beyond a reasonable
doubt “necessarily includes not only facts that increase the
ceiling, but also those that increase the floor,” because both
kinds of facts “alter the prescribed range of sentences to which
a defendant is exposed.”
mandate
Id. at 108.
The MVRA, however, does not
a
minimum
“floor”
or
restitution
amounts
that
defendant
a
even
a
“prescribed
may
be
range”
ordered
to
of
pay.
Rather, the amount of restitution -- if any -- is authorized by
the jury based on the loss caused to the victim by the defendant.
Alleyne is thus inapplicable.
appeals
to
consider
whether
Since Alleyne, every court of
that
decision
requires
that
the
Apprendi rule extend to restitution has determined that it does
not.
See, e.g., United States v. Ovsepian, 674 Fed. Appx. 712,
714 (9th Cir. 2017); Kieffer, 596 Fed. Appx. at 664 (10th Cir.);
United States v. Roemmele, 589 Fed. Appx. 470, 470-471 (11th Cir.
2014) (per curiam) (rejecting Alleyne challenge to restitution),
cert. denied, 136 S. Ct. 255 (2015); United States v. Agbebiyi,
17
575 Fed. Appx. 624, 632-633 (6th Cir. 2014); Basile, 570 Fed. Appx.
at 258 (3d Cir.); United States v. Holmich, 563 Fed. Appx. 483,
484-485 (7th Cir. 2014), cert. denied, 574 U.S. 1121 (2015).
Petitioner acknowledges (Pet. 6) that the lower courts are
uniform in their recognition that the rule of Apprendi does not
apply to restitution.
And although some Members of this Court
have favored review of the question presented, see Hester v. United
States, 139 S. Ct. 509 (2019) (Gorsuch, J., dissenting from denial
of certiorari), this Court has repeatedly denied certiorari on
this issue, see p. 8 n.1, supra, and petitioner identifies nothing
that would warrant a different course here.
d.
Indeed, even if this Court were inclined to consider the
question presented, this case would be an unsuitable vehicle for
doing so because petitioner failed to raise his Apprendi argument
in the district court.
Although petitioner objected to the amount of restitution
ordered by the district court, he did not argue that, pursuant to
Apprendi, a restitution order must be based on facts found by a
jury beyond a reasonable doubt.
Petitioner’s Sixth Amendment
argument is therefore reviewable only for plain error.
See Fed.
R. Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 135
(2009).
On plain-error review, petitioner would be entitled to
relief only if he could show (1) an error (2) that is “clear or
obvious, rather than subject to reasonable dispute,” (3) that
18
“affected
[his]
affect[ed]
the
substantial
fairness,
judicial proceedings.”
(2010)
(citation
rights,”
integrity
and
or
(4)
that
public
“seriously
reputation
of
United States v. Marcus, 560 U.S. 258, 262
omitted);
see
Cotton,
535
U.S.
at
631-632
(applying plain-error review to a claim of an Apprendi error).
In light of the courts of appeals’ unanimous rejection of
petitioner’s Apprendi argument, he cannot demonstrate error that
is “clear or obvious, rather than subject to reasonable dispute.”
Marcus, 560 U.S. at 262 (citation omitted).
Nor can petitioner
demonstrate that any error affected his substantial rights or
seriously affected the fairness, integrity, or public reputation
of
judicial
proceedings.
Petitioner
has
never
argued
that
submitting the restitution issue to the jury would have resulted
in a lower calculation of the amount of restitution owed.
The
government’s
was
loss
calculation
at
petitioner’s
sentencing
conservative -- excluding any claims whose fraudulence could not
be verified -- and was based on clear, specific evidence of loss.
See pp. 5-6, supra.
In particular, the final restitution amount
was limited to the sum of the tax refunds that the IRS actually
paid on a specific set of returns that were proved to be false.
See
ibid.
Petitioner
does
not
identify
any
error
in
the
calculation or any reason to believe that application of Apprendi
would change the result.
19
2.
Petitioner’s separate claim of error in the deliberate-
avoidance
instruction
likewise
does
not
warrant
this
Court’s
avoidance,
or
willful
review.
a.
The
doctrine
of
deliberate
blindness, is “well established in criminal law” as a means of
demonstrating that the defendant acted “knowingly or willfully.”
Global-Tech Appliances, Inc. v. SEB S. A., 563 U.S. 754, 766
(2011).
“The traditional rationale for this doctrine” is that
defendants
who
“deliberately
shield[ ]
themselves
from
clear
evidence of critical facts that are strongly suggested by the
circumstances” are “just as culpable as those who have actual
knowledge.”
Ibid.
A deliberate-avoidance instruction does not
diminish the government’s burden to prove the mens rea of knowledge
beyond a reasonable doubt; it is simply one means by which the
government may make that showing.
See, e.g., United States v.
Svoboda, 347 F.3d 471, 477 (2d Cir. 2003), cert. denied, 541 U.S.
1044 (2004).
The courts of appeals uniformly have recognized that it is
appropriate in a criminal case to give a deliberate-avoidance
instruction where the evidence could support conviction on that
basis.
E.g., Svoboda, 347 F.3d at 477; United States v. Draves,
103 F.3d 1328, 1333 (7th Cir.), cert. denied, 521 U.S. 1127 (1997);
United States v. Holloway, 731 F.2d 378, 381 (6th Cir. 1984) (per
curiam); United States v. Jewell, 532 F.2d 697, 700-704 (9th Cir.)
20
(“The substantive justification for the rule is that deliberate
ignorance and positive knowledge are equally culpable.”), cert.
denied,
426
U.S.
951
(1976).
The
“basic
requirements”
of
deliberate avoidance are that the defendant (1) “subjectively
believe[s] that there is a high probability that a fact exists”
and (2) “take[s] deliberate actions to avoid learning of that
fact.”
Global-Tech, 563 U.S. at 769.
The deliberate-avoidance instruction at petitioner’s trial
was consistent with those standards. The district court instructed
the jurors that they could find the requisite knowledge of the
falsity of the tax returns if petitioner (1) “was aware of a high
probability” that the tax returns he filed, agreed to file, or
induced others to file were false, and (2) “deliberately avoided
learning the truth.”
Gov’t C.A. Br. 20-21 (citation omitted).
That instruction was legally correct, see Global-Tech, 563 U.S. at
769, and was supported by the evidence.
In particular, while
petitioner attempted at trial to portray himself as an offsite
owner who trusted his employees to prepare accurate tax returns,
the government presented evidence that petitioner heard complaints
from the employees indicating a high probability that the marketers
were providing fraudulent tax information.
See pp. 2-4, supra.
That evidence supported an inference that, at minimum, petitioner
deliberately “shut his eyes” to the preparation of fraudulent tax
returns at his office, which he assisted by signing many fraudulent
21
tax returns himself and reassuring the complaining employees that
they should not worry.
See p. 3, supra.
Cf. United States v.
Schnabel, 939 F.2d 197, 204 (4th Cir. 1991) (citing evidence of a
“wide variety of fraudulent practices that took place” at the
defendant’s office to support a deliberate-avoidance instruction).
b.
Petitioner
avoidance
contends
instruction
requirements
of
his
is
(Pet.
10-11)
inconsistent
conspiracy
offense.
meaningful support for that proposition.
that
a
deliberate-
with
the
mens
rea
But
he
provides
no
The Model Penal Code
section on which he relies (Pet. 11) states that a defendant is
guilty of conspiracy if he enters an agreement “with the purpose
of promoting or facilitating” the commission of a crime.
Model
Penal
jury
Code
§
5.03(1)
(1985).
The
deliberate-avoidance
instruction that petitioner now challenges was directed to whether
petitioner, who had the purpose of promoting and facilitating the
preparation and filing of tax returns on behalf of his “marketer”
clients, knew the fact that made the scheme criminal -- namely,
the falsity of the returns. As previously explained, a deliberateavoidance instruction is an instruction about how knowledge can be
proved, not an invitation to find guilt based on a lesser mental
state.
Accordingly, the courts of appeals have recognized that
“intent to participate [in a conspiracy] may be shown by a finding
that the defendant either knew, or consciously avoided knowing,
the unlawful aims of the charged scheme and intended to advance
22
those unlawful ends.”
Svoboda, 347 F.3d at 480; see also United
States v. Nguyen, 493 F.3d 613, 624-625 (5th Cir. 2007) (“Since
the jury found the [defendants] deliberately ignorant, and thus,
subjectively
aware
of
the
high
probabilities
of
illegalities
around them, evidence of their continued facilitation of those
highly suspicious transactions may constitute ‘specific intent’ to
further
an
illegal
purpose
for
which
they
were
deliberately
ignorant.”).
Petitioner
argues
(Pet.
10-11)
that
the
decision
below
conflicts with Ocasio v. United States, 136 S. Ct. 1423 (2016),
and United States v. Bailey, 444 U.S. 394 (1980).
But neither
Ocasio nor Bailey addressed the law of deliberate avoidance.
In
Ocasio, this Court held that a defendant may be convicted of
conspiring to violate the Hobbs Act by extorting property from
another person under color of official right, see 18 U.S.C. 371,
1951, even if the defendant’s co-conspirator is the person being
extorted.
136 S. Ct. at 1428-1429, 1436.
Applying “longstanding
principles of conspiracy law,” id. at 1429, the Court recognized
that the existence of a conspiracy to violate the Hobbs Act does
not require “that each conspirator agreed personally to commit -or was even capable of committing -- the substantive offense of
Hobbs Act extortion.”
Id. at 1432.
It is enough “that the
conspirators agreed that the underlying crime be committed by a
23
member of the conspiracy who was capable of committing it.”
Ibid.
Ocasio has no bearing on the question presented.
Bailey likewise does not support petitioner’s argument, as
that case did not involve a conspiracy offense. Instead, the Court
in Bailey addressed the mens rea required for a conviction for
escape from federal custody, in violation of 18 U.S.C. 751(a)
(1970).
444 U.S. at 406-407.
The Court discussed, by way of
background, the criminal intent that is required for various
classes of offenses, including “inchoate offenses such as attempt
and
conspiracy,
where
a
heightened
mental
state
criminality itself from otherwise innocuous behavior.”
405.
separates
Id. at
The Court did not elaborate on this “heightened mental
state,” much less whether a defendant’s purpose to promote the
object of a conspiracy can be shown by evidence that the defendant
sought to promote a scheme’s objective while willfully blinding
himself to the nature of those objectives.
Bailey therefore does
not draw into question the propriety of a deliberate-avoidance
instruction in this case.
c.
Petitioner fails to identify a conflict in the courts of
appeals on the deliberate-avoidance issue.
Several courts have
approved deliberate-avoidance jury instructions in cases involving
conspiracy charges.
See Svoboda, 347 F.3d at 476-482; Nguyen,
493 F.3d at 619-621 (upholding a deliberate-avoidance instruction
in a case involving conspiracy to commit money laundering); United
24
States v. Gromet, 801 F.2d 395, 1986 WL 17616, at *2 n.3 (4th Cir.
1986) (Tbl.) (per curiam) (finding a willful-blindness instruction
is permissible “even in a case involving a conspiracy charge”);
United States v. Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013)
(rejecting the defendants’ argument that “it is impossible to
conspire to be deliberately ignorant”).
And the cases from the
Fifth and Seventh Circuits cited by petitioner (Pet. 11) are not
to the contrary.
The Fifth Circuit’s decision in United States v. Ganji,
880 F.3d 760 (2018), did not involve a deliberate-avoidance jury
instruction.
The court of appeals reviewed the sufficiency of the
evidence supporting a conviction for conspiracy to commit health
care
fraud,
id.
at
767-777,
and
observed
that
one
“cannot
negligently enter into a conspiracy,” id. at 776. That observation
is consistent with the jury instructions given at petitioner’s
trial, which stated that he must have willfully participated in
the plan with the intent to advance the object of the conspiracy,
Gov’t C.A. Br. 19-20, and that the jury could not find the
requisite intent if “the defendant was simply careless,” id. at 20
(citation omitted).
And in United States v. Macias, 786 F.3d 1060 (7th Cir. 2015),
a drug conspiracy case, the Seventh Circuit found that it was error
for
the
district
court
to
have
given
a
deliberate-avoidance
instruction, but only because that instruction “had no basis in
25
evidence.”
Id. at 1063.
The court of appeals did not suggest
that deliberate-avoidance instructions are generally inapplicable
in conspiracy cases.
To the contrary, Macias cited with approval
the court’s prior decision in United States v. Diaz, 864 F.2d 544
(7th
Cir.
1988),
cert.
denied,
490
U.S.
1070
(1989),
which
recognized that “such an instruction is permissible with respect
to a conspiracy charge.”
d.
Id. at 549; see Macias, 786 F.3d at 1062.
In any event, this case would be a poor vehicle for
considering
petitioner’s
second
question
presented.
Because
petitioner did not argue in the district court that a deliberateavoidance instruction is inconsistent with the legal requirements
of
his
conspiracy
avoidance
jury
offense,
instruction
his
challenge
given
by
the
reviewable on appeal only for plain error.
to
the
deliberate-
district
court
is
See Jones v. United
States, 527 U.S. 373, 388 (1999) (applying plain-error review to
instructional challenge that was not raised in the district court).
And because petitioner’s challenge to the district court’s jury
instructions finds no support in the case law, petitioner cannot
demonstrate
any
error
that
is
“clear
or
obvious.”
Marcus,
560 U.S. at 262 (citation omitted).
Nor can petitioner demonstrate an error that affected his
“substantial
rights”
or
seriously
affected
“the
integrity or public reputation of judicial proceedings.”
560 U.S. at 262 (citation omitted).
fairness,
Marcus,
The government presented
26
compelling evidence that petitioner actually knew that the tax
returns he filed were false, so any error in giving the instruction
would be harmless.
Cf. United States v. Wells, 262 F.3d 455, 466
(5th Cir. 2001) (explaining that an error in giving a deliberateavoidance instruction is “harmless where there is substantial
evidence of actual knowledge”) (citation omitted).
In particular,
the evidence here showed that petitioner personally dealt with and
paid
the
marketers
information.
who
provided
Gov’t C.A. Br. 7-9, 12.
the
fraudulent
taxpayer
The evidence also showed
that the IRS repeatedly notified petitioner about discrepancies on
the returns petitioner had prepared for the marketers.
10-11.
Id. at
Petitioner was not unaware of the falsity of the returns
for which he earned $1 million in fees.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
RICHARD E. ZUCKERMAN
Principal Deputy Assistant
Attorney General
S. ROBERT LYONS
ALEXANDER P. ROBBINS
GREGORY S. KNAPP
Attorneys
JANUARY 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.