Opposition Brief — Bussell v. United States (No. 07-1262)

Ss (8

o aN

i j ad 73 . he

. q owe” OF Faw

- eee]

No. 07-1262 399 GE OF Fine Oe +

i

LETANTIA BUSSELL, PETITIONER

Vv.

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

GREGORY G. GARRE

Acting Solicitor General

Counsel of Record

MATTHEW W. FRIEDRICH

Acting Assistant Attorney

General

SANGITA K. RAO

Attorney

Department of Justice

1, ashington, D.C. 20530-0001

(202) 514-2217

QUEST'ONS PRESENTE

1, Whether, absent fundamental ambiguity in the

questio1., a faise statement conviction may be based on

a jury’s determination that the defendant gave a know-

ingly false answer to the question as she understood it.

2. Whether the district court’s restitution order was

authorized under the Victim and Witness Protection Act

of 1982 (VWPA), 18 U.S.C. 3663 (2000 & Supp. V 2005).

3. Whether petitioner’s Sixth Amendment rights

were violated when the district court, in determining pe-

titioner’s sentence, purportedly relied in part on conduct

underlying a charge on which the jury had returned a

verdict of not guilty.

TABLE OF CONTENTS

Page

ty iNwa> Fesvan dbase lavas s e490 0h ene er eNS 1

GEE ae FR eee ene PR are be eer yer 1

ee gh Sa ne od an nt ae ses cabin ade case eke 2

Argument ...... Gaccnes atu dae bike eens eee eae

EE ra aie eeuad eeu aad CEA CUE R aT Wks bode ees 24

TABLE OF AUTHORITIES

Cases:

Ashworth v. United States, 128 S. Ct. 1788 (2008) ... 22, 23

Bronston v. United States, 409 U.S. 352 (1978) ......... 12

Hughey v. United States, 495 U.S. 411 (1990) ..... 7, 14, 20

Hurnv. United States, 128 S. Ct. 1737 (2008) .......... 23

Mercado v. United States, 128 S. Ct. 1786 (2008) .... 22, 23

Oregon v. Ice, petition for cert. granted, No. 07-901

Ce EE Cun eth aac tse eel su cen swan eres 23

Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 518

5: SUBIC Ghee meer Gn praes Hee ni tokin ne neni Ute nM eee re 12

United States v. Adams, 363 F.3d 363 (5th Cir.

nie alias oa ceccnee a ee ioe hoes 18, 19

United States v. Ameline, 409 F.3d 1073 (9th Cir

ro ia ae eee ae a ea pee ews 5

United States v. Ashworth, 247 Fed. Appx. 409 (4th

Cir. Sept. 6, 2007), cert. denied, 128 S. Ct. 1738

Re aie e gk he a ee ea wets 23

United States v. Bennett, 943 F.2d 738 (7th Cir. 1991),

cert. denied, 504 U.S. 987 (1992) ................ 18, 20

(IIT)

Cases—Continued: Page

United States v. Berger, 251 F.3d 894 (10th Cir. 2001)... . 19

United States v. Bollin, 264 F.3d 391 (4th Cir.), cert.

denied, 534 U.S. 935 (2001), and 535 U.S. 989 (2002) .. 10

United States v. Booker, 543 U.S. 220 (2005) ........... 22

United States v. Booth, 309 F.3d 566 (9th Cir. 2002) .... 21

United States v. Boyd, 222 F.3d 47 (2d Cir. 2000) ....... 21

United States v. Bryan, 58 F.3d 933 (4th Cir. 1995) ..... 10

United States v. Camper, 384 F.3d 1073 (9th Cir.

2004), cert. denied, 546 U.S. 827 (2005) ............. 12

United States v. Ceccerelli, 350 F. Supp. 475 (W.D.

Pe Es ncn a ees lee a ea ce 9 kee 11

United States v. Chaney, 964 F.2d 487 (5th Cir.

SE i a oes ek es es 19, 20, 21

United States v. Chapin, 515 F.2d 1274 (D.C. Cir.),

cert. denied, 423 U.S. 1015 (1975) ................ 9,11

United States v. Console, 13 F.3d 641 (3d Cir. 1993),

cert. denied, 511 U.S. 1076, and 513 U.S. 812 (1994) .. 18

United States v. Culliton, 328 F.3d 1074 (9th Cir.

2003), cert. denied, 540 U.S. 1111 (2004) ......... 5, 6,8

United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) ... 9

United States v. DeZarn, 157 F.3d 1042 (6th Cir.

ME seas rh ee ee eke he den 12

Jnited States v. Dorcely, 454 F.3d 366 (D.C. Cir.),

cost. denied, 1275. Ct: G1 Ga) . von. occ ec nsesies 23

United States v. Duncan, 400 F.3d 1297 (11th Cir.),

cert. denied, 546 U.S. 940 (2005) ..........5........ Ze

United States v. Farias, 469 F.3d 393 (5th Cir. 2006),

cert. denied, 127 S. Ct. 1502 (2007) ................. 23

Cases—Continued: Page

United States v. Farmer, 137 F.3d 1265 (10th Cir.

ele iil oh ek oie bk 9 Reh ie Crna wh veka 9

United States v. Feldman, 338 F.3d 212 (3d. Cir. 2003) ... 6

United States v. Foley, 508 F.3d 627 (11th Cir. 2007) .... 21

United States v. Frith, 461 F.3d 914 (7th Cir. 2006) ..... 17

United States v. George, 403 F.3d 470 (7th Cir.), cert.

dented, 546 US. 1008 (2005) ... 2... ccc ccc ee cees 18

United States v. Gobbi, 471 F.3d 302 (1st Cir. 2006) ..... 23

United States v. Gordon, 480 F.3d 1205 (10th Cir.

ee ive w ws eacecews 19

United States v. Grice, 319 F.3d 1174 (9th Cir.), cert.

dented, 539 U.S. G0 (G08)... ccc cece ees 13, 17

United States v. Gunther, No. 96-4804, 1998 WL

Seow (ate Car. Jatt, BB, TGS) «2. 2. cece cece ecess 10

United States v. Hatch, 434 F.3d 1 (1st Cir. 2006) ....... 8

United States v. Heater, 63 F.3d 311 (4th Cir. 1995),

cert. denied, 516 U.S. 1083 (1996) .................. 10

United States v. Hensley, 91 F.3d 274 (1st Cir.

cic aierwdcecoesecses 19, 20

United States v. High Elk, 442 F.3d 622 (8th Cir.

ee is ewes eeeeeeces 23

United States v. Hurn, 496 F.3d 784 (7th Cir. 2007),

cert. denied, 128 5S. Ct. 1737 (2008) ................. 23

United States v. Jeffery, No. 93-6295, 1994 WL 468099

(10th Cir. Aug. 25, 1994), cert. denied, 513 U.S.

1196 (1995) ...... MS ita esa nw eelecenees 19

United States v. Jimenez, 513 F.3d 62 (3d Cir.), cert.

denied, No. 07-1291, 2008 WL 1751518 (May 12,

EIS ea 23

VI

Cases—Continued: 3 Page

United States v. Kane, 944 F.2d 1406 (7th Cir. 1991) .... 16

United States v. Lighte, 782 F.2d 367 (2d Cir. 1986) ... 9, 10

United States v. Magallanez, 408 F.3d 672 (10th Cir.),

cert. denied, 546 U.S. 955.(2005) .............. oy x's

United States v. Manapat, 928 F.2d 1097 (11th Cir.

Pee Og Oe eg ee Cee Rel bas ob so 4s 0 9

United States v. Martellano, 675 F.2d 940 (7th Cir.

eed iad Gr ie Lae asinG de wie's ph Web ve wo 6 9

United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) ... 23

United States v. Mercado, 474 F.3d 654 (9th Cir.

2007), cert. denied, 128 S. Ct. 1736 (2008) ........... 23

United States v. Milkiewicz, 470 F.3d 390 (1st Cir.

NN ee Oe a ee A ao ae ees s 21

United States v. Pedroni, 45 Fed. Appx. 103 (3d Cir.),

cert. denied, 537 U.S. 1045 2002) ............. cc cee 18

United States v. Polichemi, 219 F.3d 698 (7th Cir.),

cert. denied, 531 U.S. 933 (2000), and 531 U.S. 1168

United States v. Race, 632 F.2d 1114 (4th Cir. 1980) ..... 9

United States v. Randle, 324 F.3d 550 (7th Cir. 2003) ... 17

United States v. Reed, 80 F.3d 1419 (9th Cir.), cert.

So BA ay er 8, 20

United States v. Robbins, 997 F.2d 390 (8th Cir.), cert.

I BE UU CL) nc cc cc cc cee cescecccccses 9

United States v. Ryan, 828 F.2d 1010 (8d Cir. 1987) .. 9, 13

United States v. Thompson, 637 F.2d 267 (5th Cir.

rs eae hy a Wie Sa eo hese eee vane i)

United States v. Turino, 978 F.2d 315 (7th Cir. 1992),

cert. denied, 508 U.S. 975 (1998) ............006- 18, 20

VII

Cases—Continued: Page

United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005),

cert. denied, 547 U.S. 1060 (2006) .................. 23

United States v. Walker, 9 F.3d 1245 (7th Cir. 1993),

cert. denied, 511 U.S. 1096 (1994) ..............008- 20

United States v. Watts, 519 U.S. 148 (1997) ............ 22

United States v. White, 503 F.3d 487 (6th Cir. 2007) ....

Constitution and statutes:

ee ee oo eek eu Seabed 14, 23

Mandatory Victims Restitution Act of 1996, 18 U.S.C.

A eae casas a aay aN A as ROR Wo aE Oe 13

Victim and Witness Protection Act of 1982, 18 U.S.C.

BOGS GO & Sapp. V FOGG) 2.0. ccsccssccnvcsccees 14

18 U.S.C. 3663(a)(1)(A) (Supp. V 2005) ........... 14

ge ee ee ee 14, 15

18 U.S.C. 3664 (2000 & Supp. V 2005) ............ 13

Comprehensive Thrift and Bank Fraud Prosecution

and Taxpayer Recovery Act of 1990, Pub. L. No.

101-647, § 2509, 104 Stat. 4863 .... ccc cence eeces 14

i doa us ok von ko eee Vee wee hoes ees 4

iste neve ue eh sd tee ev Aw <de eww enews 4

on. os nS g ad unadh eRe ea aan oe ee eS 4

ss ES aa penn Fong Spent age e pam GIe wes 4

Re iat os sa ie kg I ieee Ora 4

Ny fecdaa cy hue nbekaneeta~es ous en 9

es a aie hag sinned ta AY Ene 12

26 U.S.C. 7201 ..... Vibe E Ns mune Sa RE 6a ee ORA RET EN 4

In the Supreme Court of the Gnited States

No. 07-1262

LETANTIA BUSSELL, PETITIONER

v. j

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

OPINIONS BELOW

The opinion of the court of appeals after remand

(Pet. App. 1a-29a) is reported at 504 F.3d 956. The prior

opinion of the court of appeals (Pet. App. 30a-55a) is

reported at 414 F.3d 1048. The various orders of the

district court (Pet. App. 56a-116a) are unpublished.

JURISDICTION

The judgment of the court of appeals was entered on

September 27, 2007. A petition for rehearing was denied

on December 5, 2007 (Pet. App. 119a-120a). On Febru-

ary 22, 2008, Justice Kennedy extended the time within

which to file a petition for a writ of certiorari to and in-

cluding April 3, 2008, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial, petitioner was convicted in the

United States District Court for the Central District of

California on multiple counts of bankruptcy fraud and

tax evasion. The court of appeals affirmed petitioner’s

convictions but remanded for resentencing. Pet. App.

30a-55a. On remand, the district court sentenced peti-

tioner to 36 months of imprisonment and ordered resti-

tution in the amount of $2,284,172.87. The court of ap-

peals affirmed in part and reversed and remanded in

part. Jd. at la-29a.

1. a. Petitioner was a practicing dermatologist. Her

late husband was an anaesthesiologist. In 1992, facing

mounting tax and bank debts, the couple hired two at-

torneys to assist in pre-bankruptcy planning. Pet. App.

2a-3a; Gov’t C.A. Br. 5.

Upon the attorneys’ acvice, petitioner reorganized

her dermatology practice into three separate corpora-

tions: BBL Medical Management, Inc. (BBL), Beverly

Hills Dermatology Medical Corp. (Beverly Hills Medi-

cal) and L.B. Bussell, MD Inc. (L.B. Bussell). BBL and

Beverly Hills Medical were held in the names of nomi-

nee owners. Petitioner was the owner and officer of re-

cord for L.B. Bussell. BBL received the practice’s gross

receipts, paid expenses and overhead, and retained the

profits of the business. The second corporation, Beverly

Hills Medical, served as a conduit through which peti-

tioner transferred between 10% and 20% of BBL’s prof-

its to the third corporation, L.B. Bussell, which paid

petitioner an artificially reduced salary. Pet. App. 3a;

Gov't C.A. Br. 9-10. The attorneys also helped peti-

tioner and her husband set up various corporations to

conceal ownership of a Utah condominium, a San Diego

3

farm, and receipt of disability insurance income. Pet.

App. 3a-4a; Gov’t C.A. Br. 12-15.

b. On March 7, 1995, petitioner and her husband

filed a joint bankruptcy petition. Petitioner reported

total assets of approximately $1.8 million and total liabil-

ities exceeding $4.6 million. Pet. App. 4a. Petitioner

failed to disclose her interests in BBL and Beverly Hills

Medical. Gov’t C.A. Br. 16-17. Specifically, petitioner

omitted mention of either entity in her responses to

Question 12 on Schedule B (requiring debtor to list

“[s]tock and interests in incorporated and unincorpo-

rated businesses”), Question 33 of Schedule B (requiring

disclosure of “[o]ther personal property of any kind not

already listed”), and Question 16 of the Statement of

Financial Affairs (requiring debtor to “list the names

and addresses of all businesses in which the debtor was

an officer, director, partner, or managing executive of a

corporation”). Pet. App. 133a-139a.

Petitioner and her husband also failed to disclose the

true market value of the Utah condo, thereby concealing

their interest in $500,000 in equity in that property, as

well as additional assets that they had fraudulently

transferred to nominee owners or concealed. Gov’t C.A.

Br. 17-18.

In August 1995, the bankruptcy court discharged all

their scheduled debts, except a claim by Provident Life

Insurance Company in pending litigation, in the amount

of $2,293,527.09. Pet. App. 4a.

2. In 2000, a grand jury returned a 17-count indict-

ment charging petitioner, her husband, and one of their

former attorneys with various fraud-related offenses.

At trial, petitioner and her husband argued that they

acted in good faith and relied on the advice of their law-

yers. Pet. App. 4a.

4

The jury found petitioner guilty of conspiracy to con-

ceal assets in contemplation of bankruptcy, to make

false statements in the bankruptcy, and to conceal assets

of the bankruptcy estate, in violation of 18 U.S.C. 371

(Count 1); concealing an ownership interest in BBL

(Count 2) and in Beverly Hills Medical (Count 3), in vio-

lation of 18 U.S.C. 152(1) and (2); making false state-

ments in the bankruptcy petition, including omission of

interests in BBL and Beverly Hills Medical (Count 5)

and omission of involvement as managing executives of

those entities (Count 6), in violation of 18 U.S.C. 2 and

18 U.S.C. 152(3); and willfully attempting to evade a

substantial portion of income tax owed for tax years

1983-1987, in violation of 26 U.S.C. 7201 (Count 12). The

jury found petitioner not guilty of concealing ownership

of the Utah condo (Count 4); making a false oath and

account that she was not actively involved with any cor-

porations other than L.B. Bussell, except on a passive

investment basis (Count 11); and willfully attempting to

evade a substantial portion of income tax owed for 1996

(Count 17). Pet. App. 4a-5a, 33a."

3. At petitioner’s original sentencing, the district

court agreed with the recommendations of the Presen-

tence Report (PSR paras. 77-81) and increased the of-

fense level by 13 levels, based on a finding that peti-

tioner’s intended loss equaled $3,057,927.09, the full

amount of debt petitioner attempted to discharge in

bankruptcy. The district court agreed with the govern-

ment that, given petitioner’s true financial position, she

would have been able to pay her debts and would not

have obtained bankruptcy relief if she had not engaged

' While the jury was deliberating, petitioner’s husband fell to his

death from his hotel room. Pet. App. 4a. Petitioner’s former attorneys

entered into plea agreements with the government. /d. at 5a.

5

in the conspiracy to conceal her assets. Pet. App. 5a;

Gov't C.A. Br. 21-22.

The district court Imposed a mid-range Guidelines

sentence of 36 months. The district court also ordered

restitution of $2,393,527, which equaled the amount of

debt actually discharged in bankruptcy, plus an unpaid

settlement of $100,000 to Provident for a debt petitioner

did not succeed in discharging. The district court as-

sessed costs of prosecution of $62,614, and imposed a

$50,000 fine. Pet. App. 5a-6a.

4. The court of appeals affirmed petitioner’s convic-

tions, vacated the restitution and cost orders, and or-

dered a limited remand pursuant to United States v.

Ameline, 409 F.3d 1073 (9th Cir. 2005) (en bane). Pet.

App. 30a-55a.

As relevant here, petitioner argued that the district

court erred by submitting to the jury the charges based

on answers to Question 12 from Schedule B and Ques-

tion 16 from the Statement of Financial Affairs because,

according to petitioner, they were “fundamentally am-

biguous” questions. Pet. C.A. Br. 40-48 (No. 02-50495).

Petitioner also argued that the evidence was insufficient

to prove that petitioner’s answers to the relevant ques-

tions were false as she understood the questions. The

court of appeals rejected both arguments. The court

explained that, although the answer to a “fundamentally

ambiguous” question may not as a matter of law form

the basis of a false statement prosecution, “we do not

invalidate a conviction ‘simply because the questioner

and respondent might have different interpretations’ of

the relevant questions.” Pet. App. 44a (quoting United

States v. Culliton, 328 F.3d 1074, 1079 (9th Cir. 2003),

cert. denied, 540 U.S. 1111 (2004)). Rather, the court of

appeals explained, it examines “the context of the ques-

6

tion and answers, as well as other extrinsic evidence, to

determine whether the respondent provided false an-

swers to the questions ‘as he understood [them].”” Jd. at

44a-45a (quoting Culliton, 328 F.3d at 1079). The court

thereafter concluded that the evidence showed that peti-

tioner provided knowingly false answers by failing to

disclose her interest and management role in BBL and

Beverly Hills Medical. /d. at 45a-47a.

With respect to sentencing, the court of appeals de-

ferred consideration of petitioner’s challenges to the loss

amount and remanded the case pursuant to Ameline for

the district court to consider whether it would have im-

posed a materially different sentence had it known that

the Guidelines were only advisory. Pet. App. 53a. The

court also vacated the restitution order and remanded

for the district court “to determine the actual losses

caused by [petitioner’s] fraudulent conduct—that is, to

compare ‘what actually happened with what would have

happened if [she] had acted lawfully.” Jd. at 54a-55a

(second set of brackets in original) (quoting United

States v. Feldman, 338 F.3d 212, 220-221 (3d Cir. 2003)).

5. On remand, the district court declined to reopen

the sentencing proceedings, finding that the 36-month

sentence imposed was “just and reasonable” and that it

would not have imposed a materially different sentence

under an advisory Guidelines regime. Pet. App. 88a.

The court essentially reaffirmed its approximately $2.3

million restitution order, finding that, based on peti-

tioner’s count 1 conspiracy conviction, petitioner “caused

actual losses” to victims in the total amount of the bank-

ruptcy debt scheduled to be discharged. /d. at 89a.

6. The court of appeals affirmed in part, reversed in

part, and remanded. Pet. App. la-29a.

7

The court upheld petitioner’s 36-month term of im-

prisonment, rejecting petitioner’s various challenges to

the district court’s calculation of the loss amount under

the Guidelines, including her claim that the loss amount

should not include equity in the Utah condo because she

was acquitted of concealing that equity. Pet. App. 6a-

15a. The court of appeals noted that “[t]he district court

is entitled to take into account all relevant conduct,

charged and uncharged,” in sentencing a defendant. /d.

at 12a n.8.

The court of appeais also affirmed vhe restitution

order. The panel rejected petitioner’s challenge to the

methodology used by the district court to calculate ac-

tual loss. The panel upheld the district court’s determi-

nation “that the value of the assc’ = exceeded the debts

to be discharged and therefore the actual loss to the

creditors equaled the amount of debt actually dis-

charged in the bankruptcy.” Pet. App. 20a.

In addition, the court of appeals rejected petitioner’s

argument that, under Hughey v. United States, 495 U.S.

411 (1990), the district court could order restitution

based only on the specific assets she was convicted of

concealing in count 2 (her interest in BBL) and count 3

(her interest in Beverly Hills Medical). Pet. App. 20a-

21a. The court of appeals held that Hughey was “of no

avail to [petitioner] because, after Hughey was decided,

Congress amended the VWPA by expanding the defini-

tion of ‘victim,’ in part to overrule that decision.” /d. at

21a. The court of appeals reasoned that, “[uJnder the

amended statute, when someone is convicted of a crime

that includes a scheme, conspiracy, or pattern of crimi-

nal activity as an element of the offense, the court can

order restitution for losses resulting from any conduct

that was part of the scheme, conspiracy, or pattern of

8

criminal acti: iiy.”” Id. at 22a (quoting United States v.

Reed, 80 F.%e 1419, 1423 (9th Cir.), cert. denied, 519

U.S. 882 (199¢>. Because petitioner “was convicted of

a crime that included a conspiracy ‘as an element of the

offense,” the court of appeals concluded, “the district

court did not err in considering all of the concealed as-

sets for purposes of determining the actual loss to the

bankruptcy creditors.” Pet. App. 22a-23a.”

ARGUMENT

1. Petitioner asserts (Pet. 13-24) that there is a cir-

cuit conflict on whether a false statement conviction may

be based on the answer to a question, absent fundamen-

tal ambiguity, as long as the jury finds that the defen-

dant falsely answered the question as she understood it.

There is no square conflict, petitioner did not argue for

a contrary rule below, and the court of appeals’ rule (as

applied here) comports with due process. Petitioner’s

claim thus warrants no further review.

a. The court of appeals applied its rule that a jury

should determine whether the defendant gave a false

answer to the question as she understood it, unless the

question is so “fundamentally ambiguous” that “men of

ordinary intelligence cannot arrive at a mutual under-

standing of its meaning.” United States v. Culliton, 328

F.3d 1074, 1078 (9th Cir. 2003) (internal quotation marks

omitted), cert. denied, 540 U.S. 1111 (2004). Petitioner

does not dispute that all the other circuit courts, with

the lone exception of the Fourth Circuit, agree with the

Ninth Circuit. See United States v. Hatch, 434 F.3d i,

* The court of appeals reversed in part and remanded, based on its

ruling that certain trust deeds should have been reconveyed to peti-

tioner when the court of appeals vacated the original sentencing order.

Pet. App. 27a-29a.

9

5 (1st Cir. 2006); United States v. Damrah, 412 F.3d 618,

626 (6th Cir. 2005); United States v. Farmer, 137 F.3d

1265, 1268-1269 (10th Cir. 1998); United States v. Rob-

bins, 997 F.2d 390, 395 (8th Cir.), cert. denied, 510 U.S.

948 (1993); United States v. Manapat, 928 F.2d 1097, ~

1099-1100 (11th Cir. 1991); United States v. Ryan, 828

F.2d 1010, 1015 (3d Cir. 1987); United States v. Lighte,

782 F.2d 367, 372-373 (2d Cir. 1986); United States v.

Martellano, 675 F.2d 940, 942 (7th Cir. 1982); United

States v. Thompson, 637 F.2d 267, 270 (5th Cir. 1981);

United States v. Chapin, 515 F.2d 1274, 1279-1280 (D.C.

Cir.), cert. denied, 423 U.S. 1015 (1975).

Petitioner alleges (Pet. 15-16) a circuit conflict based

on the Fourth Circuit’s decision in United States v.

Race, 632 F.2d 1114, 1120 (1980). A review of cases from

the Fourth Circuit, however, shows that there is no

square conflict. In Race, the Fourth Circuit held that

the defendants could not be prosecuted under 18 U.S.C.

1001 for submitting false and fraudulent invoices to the

government, when those invoices were submitted pursu-

ant to an arguably ambiguous contractual provision.

The court reasoned that the contractual language could

not support the government’s construction but added

that, even if the contractual language were ambiguous,

the result would have been the same. 632 F.2d at 1119-

1120. The court noted, however, that there was no evi-

dence in that case to support a finding that the defen-

dants had acted in bad faith in seeking reimbursement

(e.g., by construing the contractual language as the gov-

ernment did). /d. at 1120-1121. Petitioner cites no

Fourth Circuit case holding that a defendant could not

be prosecuted for perjury for making a false statement

when, even if the question was somewhat ambiguous,

10

there was evidence that the defendant understood the

question as the government did.

Further, in more recent eases, the Fourth Circuit has

relied on the rule that a prosecution for perjury is fore-

closed only if the question is “fundamentally ambigu-

ous.” See United States v. Heater, 63 F.3d 311, 327

(1995) (“In this case * * * we find no ‘fundamental am-

biguity’ that would have required the district court to

remove the questions from the jury’s consideration.”),

cert. denied, 516 U.S. 1083 (1996); see also United States

v. Bollin, 264 F.3d 391, 411 (noting that in Heater the

court had affirmed a perjury conviction “because the

question did not contain any fundamental ambiguity that

would have prevented the jury from considering the

question”), cert. denied, 534 U.S. 935 (2001), and 535

U.S. 989 (2002); United States v. Gunther, No. 96-4804,

1998 WL 29259, at *3-*4 (Jan. 28, 1998) (unpublished)

(affirming defendant’s perjury conviction because “[a]n

inquiry is not rendered fundamentally ambiguous

merely because ‘the words in question have different

meanings in different situations”) (quoting Lighte, 782

F.2d at 375). Indeed, even in a case where the facts

made the Fourth Circuit “sympathetic” to the defen-

dant’s claim that the questions posed to him were sus-

ceptible to an alternative interpretation that would have

made his answers truthful, the Fourth Circuit nonethe-

less affirmed the perjury conviction because it was “sat-

isfied” that the context “provided the jury an adequate

basis upon which to conclude that [the defendant] under-

stood” the questions as the government intended and

“that he deliberately lied” in his responses. United

States v. Bryan, 58 F.3d 933, 960 (1995). In light of

these cases, petitioner is unable to demonstrate a square

11

conflict between the Ninth Circuit’s rule (adopted by

every other circuit) and that of the Fourth Circuit.

In any event, this case is not a good vehicle for re-

solving any tension between the Ninth Circuit and the

Fourth Circuit. Petitioner argued below only that the

false statement allegations in the indictment were im-

permissible because they were based on “fundamentally

ambiguous” questions. She did not ask the courts to

apply a more protective standard, nor did she bring the

courts’ attention to the Fourth Circuit’s decision in

Race. See Pet. C.A. Br. 40-48 (No. 02-50495). Accord-

ingly, because the lower courts had no occasion to con-

sider whether a different standard should be applied,

this case is a poor vehicle for resolution of that issue.

b. The Ninth Circuit applied the correct standard in

evaluating any ambiguity in the challenged questions

that were the basis of some of the false statement allega-

tions in the indictment. “Almost any question or answer

can be interpreted in several ways when subjected to

ingenious scrutiny after the fact.” Chapin, 515 F.2d at

1279-1280 (quoting United States v. Ceccerelli, 350 F.

Supp. 475, 478 (W.D. Pa. 1972)). To preclude prosecu-

tion whenever a question is somewhat ambiguous, as

petitioner advocates, even though the evidence is suffi-

cient for the jury to conclude beyond a reasonable doubt

that a particular defendant understood the question as

it was intended and answered it falsely, would severely

limit the reach of false statements statutes and thereby

significantly impede Congress’s efforts to promote

truth-telling in government matters.

Contrary to petitioner’s contention (Pet. 17-18), the

rule applied by the Ninth Circuit and the other courts of

appeals does not violate due process principles of fair

notice. Under the court of appeals’ rule, a jury may find

12

a defendant guilty only after concluding that the defen-

dant understood the question as the government did

and, having that understanding, answered falsely. Such

a rule, with its requirement of a finding that a defendant

had knowledge of the falsity of her statement before

allowing conviction, is more than sufficient to give a per-

son of ordinary intelligence fair notice of the type of con-

duct that is forbidden. Cf. Posters ‘N’ Things, Lid. v.

United States, 511 U.S. 513, 526 (1994) (scienter re-

quirement in criminal statute “assists in avoiding any

vagueness problem”).

Petitioner’s reliance (Pet. 17, 19) on Bronston v.

United States, 409 U.S. 352 (1973), is also misplaced. In

Bronston, this Court held that an individual could not be

convicted of perjury under 18 U.S.C. 1621 for giving an

answer that was literally true, even if it was not respon-

sive and arguably misleading. In that case, the defen-

dant was asked under oath whether he had ever had any

accounts in Swiss banks. 409 U.S. at 354. He answered

that his company had previously had an account in a

Swiss bank, but failed to disclose that he had personally

had such an account as well. Jbid. The defendant’s an-

swer was literally true, because the company had in fact

had such an account. /bid. The Court reversed the de-

fendant’s conviction. Jd. at 362. Bronston’s rule is not

helpful to petitioner because it is “limited to cases in

which the statement is indisputably true, though mis-

leading because it was unresponsive to the question

asked. Different rules govern statements that are am-

biguous, in which the statement may be true according

to one interpretation and false according to another.”

United States v. Camper, 384 F.3d 1073, 1076 (9th Cir.

2004), cert. denied, 546 U.S. 827 (2005); see United

States v. DeZarn, 157 F.3d 1042, 1051 (6th Cir. 1998)

13

(Bronston defense “applies in cases. where a perjury

defendant responds to a question with an unresponsive

answer”); Ryan, 828 F.2d at 1014 (Bronston would “only

be operative in those cases in which the defendant has

been accused of making a statement that is both unre-

sponsive and literally true”). Here, petitioner does not

contend that her responses were “indisputably true” but

misleading because not responsive. She contends only

that she did not respond falsely to one reasonable con-

struction of an allegedly ambiguous question. There-

fore, Bronston is inapplicable.°®

2. Petitioner challenges (Pet. 24-37) the restitution

order based on her claim that it is premised in part on

conduct of which she has not been convicted, “whether

because of acquittal or because the conduct was never

charged in the indictment.” Pet. 36. She argues that the

district court’s restitution order is not authorized under

the Victim and Witness Protection Act of 1982 (VWPA)*

* Petitioner does not appear to challenge here the court of appeals’

application of its rule to the facts of this ease. In this Court, petitioner

argues only that the questions were “ambiguous,” not that they were

“fundamentally ambiguous” or that the evidence was insufficient to find

that she provided false answers to the questions as she understood

them. Pet. 20. In any event, the court of appeals correctly rejected

petitioner’s challenges on those grounds below (Pet. App. 45a-47a), and

such a factbound issue would not merit this Court’s review.

* The VWPA was enacted in 1982 and is currently codified at 18

US.C. 3663 & 3664 (2000 & Supp. V 2005). The Mandatory Victims

Restitution Act of 1996 (MVRA) was enacted in 1996 and is codified at

18 U.S.C. 3663A. The MVRA addresses mandatory restitution, while

the VWPA addresses discretionary restitution. The VWPA applies in

this case because the offense conduct took place before 1996. The

statutory language at issue in this case is contained in both the VWPA

and the MVRA, and therefore cases discussing either statute are per-

tinent. See U/nited States v. Grice, 319 F.3d 1174, 1177-1178 (9th Cir.),

cert. denied, 539 U.S. 950 (2003).

14

and that this Court’s review is warranted because the

circuits are in conflict on whether restitution can be

based on acquitted conduct. She also.contends that the

court of appeals’ interpretation of the VWPA violates

the Sixth Amendment right to trial by jury. Signifi-

cantly, in light of the district court’s methodology for

calculating restitution, this case does not present the

questions on which petitioner seeks review. In any

event, the court of appeals correctly upheld the restitu-

tion order, and there is no square conflict among the

circuit courts. Petitioner’s claims therefore do not merit

further review. |

a. The VWPA provides that a court may order a

“defendant convicted of an offense” under the federal

criminal code to “make restitution to any victim of such

offense.” 18 U.S.C. 3663(a)(1)(A) (Supp. V 2005). In

Hughey v. United States, 495 U.S. 411 (1990), the Court

held that the VWPA “authorize[d] an award of restitu-

tion only for the loss caused by the specific conduct that

is the basis of the offense of conviction.” Jd. at 413. Af-

ter that decision, Congress amended the VWPA (Com-

prehensive Thrift and Bank Fraud Prosecution and Tax-

payer Recovery Act of 1990, Pub. L. No. 101-647, § 2509,

104 Stat. 4863) to provide that, when an offense “in-

volves as an element a scheme, conspiracy, or pattern of

criminal activity,” restitution may be ordered to “any

person directly harmed by the defendant’s criminal con-

duct in the course of the scheme, conspiracy, or pat-

tern.” 18 U.S.C. 3663(a)(2).

Here, the district court ordered restitution based on

the conspiracy alleged in Count 1. Petitioner was con-

victed of conspiring to conceal assets in contemplation of

bankruptcy, to make false statements under oath in rela-

tion to bankruptcy, and to conceal assets of the bank-

15

ruptcy estate. Pet. App. 148a-149a. Although Count 1

specified three assets concealed by petitioner— her in-

terest in BBL, her interest in Beverly Hills Medical, and

her equity in the Utah condo—the indictment made

clear that the specified “means of the conspiracy” and

“overt acts” were not all-inclusive. /d. at 150a, 161la.

The indictment also alleged as “the purpose of the con-

spiracy” not merely the protection of those three spe-

cific assets, but enabling petitioner and her husband “to

discharge their outstanding debts * *. * while main-

taining control over and access to” property concealed

in anticipation of bankruptcy and property of the bank-

ruptcy estate. Jd. at 149a. The district court found that

restitution was owed to all the creditors whose claims

had been discharged in bankruptcy because, if petitioner

had acted lawfully and not engaged in a conspiracy to

conceal assets, she would not have been eligible for

bankruptcy relief because her assets exceeded her liabil-

ities. [d. at 88a-89a; see id. at 24a (upholding district

court’s restitution order because “had [petitioner] acted

lawfully, the value of the assets exceeded the debts to be

discharged and therefore the actual loss to the creditors

equaled the amount of debt actually discharged in the

bankruptcy”). Because all those creditors were “di-

rectly harmed by the defendant’s criminal conduct in the

course of the * * * conspiracy,” restitution was justi-

fied under the text of the VWPA. 18 U.S.C. 3663(a)(2).

At the threshold, in light of the district court’s meth-

od for calculating restitution, this case is a poor vehicle

for considering whether restitution may be based on

acquitted conduct or conduct not specifically charged in

the indictment, because the restitution ordered here is

not specifically tied to such conduct. Those issues would

be presented if, for example, the district court had based

16

restitution on the total value of all items it found to be

illegally concealed and, in calculating that total, had in-

cluded the value of the Utah condo (which petitioner was

acquitted of fraudulently concealing in Count 4) as well

as assets not specifically identified in the indictment

(but found to be illegally concealed by a preponderance

of the evidence). The district court, however, employed

a different approach: it found that, had petitioner not

engaged in the Count 1 conspiracy, she would not have

been entitled to discharge in bankruptcy because her

assets (which would necessarily include all her assets,

whether fully disclosed, inadvertently omitted, or ille-

gally concealed) were greater than her liabilities. Thus,

it was not necessary to the district court’s restitution

order that it find that petitioner had conspired illegally

to conceal her interest in the Utah condo or to fail to

disclose her interests in other property not specified in

the indictment. Regardless, those assets would have

been included in the district court’s calculation of the

total assets to attribute to petitioner in determining

whether she would have been entitled to a discharge in

bankruptcy. Accordingly, this case does not present the

questions on which petitioner seeks review.

b. Further, and contrary to petitioner’s suggestion,

the decision below does not directly conflict with rulings

from other courts of appeals. Indeed, petitioner does

not even allege a conflict among the circuits on whether

restitution may be based on conduct not specifically

charged in the indictment in a conspiracy case. She only

alleges a conflict on whether acquitted conduct may be

used in calculating restitution, where such conduct is

also in furtherance of a scheme or conspiracy of which

the defendant has been convicted.

17

Petitioner principally asserts a conflict with the Sev-

enth Circuit’s decision in United States v. Kane, 944

F.2d 1406, 1414 (1991). In that case, the district court

had ordered a defendant to pay restitution for the full

amount of loss caused by a bank fraud conspiracy, even

though the defendant had been acquitted of two out of

five specific incidents of submitting a fraudulent loan

application, each of which had been alleged as overt acts

of the conspiracy. The Seventh Circuit vacated the res-

titution order, holding that “the jury’s acquittal” on two

counts “must be taken as a judgment that the conspiracy

did not include the acts charged in those counts.” /d. at

1414. As the court of appeals here correctly reasoned,

however, reliance on the ruling in Kane is “misplaced

because the acts in that case occurred well before the

effective date of this amendment to the VWPA,” Pet.

App. 21a-22a n.12, which “changed the definition of ‘vic-

tim’ to partially overrule Hughey and allow restitution

beyond the specific acts of conviction.” United States v.

Grice, 319 F.3d 1174, 1177 (9th Cir.), cert. denied, 539

U.S. 950 (2003). Because the Seventh Circuit might well

come to a different conclusion based on its interpreta-

tion of the amended statute, resolution of any tension

between the approach taken in Kane and the other cir-

cuits would be premature.

The other Seventh Circuit cases cited by petitioner

do not pose any conflict. They either do not involve con-

victions for offenses that contain a scheme, conspiracy,

or pattern as an element,’ or simply recite the standard

that restitution must be tied to the offense of conviction

* See United States v. Frith, 461 F.3d 914, 920-921 (7th Cir. 2006);

United States v. Randle, 324 F.3d 550, 556-557 (7th Cir. 2003); United

States v. Polichemi, 219 F.3d 698, 706, 714 (7th Cir.), cert. denied, 531

U.S. 993 (2000), and 531 U.S. 1168 (2001).

18

without addressing acquitted conduct.® In agreement

with the Ninth Circuit, the Seventh. Circuit acknowl-

edges that, where the offense of conviction includes a

scheme, conspiracy, or pattern as an element, restitu-

tion may be ordered for all “actions pursuant to that

scheme,” even if not specifically charged in the indict-

ment. United States v. Bennett, 948 F.2d 738, 740

(1991), cert. denied, 504 U.S. 987 (1992); see United

States v. Turino, 978 F.2d 315, 319 (7th Cir. 1992), cert.

denied, 508 U.S. 975 (1993).

Nor is petitioner able to demonstrate a square con-

flict with the Third Circuit. Petitioner’s reliance on

United States v. Pedroni, 45 Fed. Appx. 103, cert. de-

nied, 537 U.S. 1045 (2002), and United States v. Console,

13 F.3d 641 (1993), cert. denied, 511 U.S. 1076, and 513

U.S. 812 (1994)—both of which rejected a defendant’s

argument that a restitution award was excessive—is

misplaced. In dicta, the Third Circuit did state (despite

little analysis) that a district court acted properly in not

awarding restitution based on a “loss associated with the

charges for which [the defendant] was acquitted.”

Pedroni, 45 Fed. Appx. at 111 n.13; see Console, 13 F.3d

at 674. But Pedroni is an unpublished decision and the

dicta in Console, like the Seventh Circuit’s decision in

Kane, predates the VWPA amendment. Petitioner cites

no case in which the Third Circuit has vacated an order

requiring restitution for the losses associated with an

entire conspiracy or scheme based on the defendant’s

acquittal in another count. .

Finally, petitioner’s reliance on the Fifth Circuit’s

decision in United States v. Adams, 363 F.3d 363 (2004),

* See United States v. George, 403 F.3d 470, 474 (7th Cir.), cert.

denied, 546 U.S. 1008 (2005); United States v. Bennett, 943 F.2d 738,

740 (7th Cir. 1991), cert. denied, 504 U.S. 987 (1992).

19

is misplaced. Like many of the other cases cited by peti-

tioner, Adams did not involve acquitted conduct. In Ad-

ams, the Fifth Circuit held only that, “when a defendant

pleads guilty to fraud, the scope of the requisite scheme

to defraud, for restitution purposes, is defined by the

mutual understanding of the parties rather than the

strict letter of the charging document.” Jd. at 364.

Nothing in Adams disturbs the Fifth Circuit’s prior

holding in United States v. Chaney, 964 F.2d 487, 452-

453 (1992), that restitution. may be ordered for loss

caused by an entire conspiracy, even where the defen-

dant was acquitted of some of the conduct also alleged to

be in furtherance of the conspiracy.’

ce. Regardless of any claimed conflict, petitioner is

incorrect on the merits. Count 1 charged a broad con-

spiracy to conceal assets. As stated in a case relied on

by petitioner, because proof of the conspiracy is an ele-

ment of the offense of conviction, “actions pursuant to

that [conspiracy] should be considered ‘conduct that is

the basis of the offense of conviction’” under Hughey.

” Petitioner also cites United States v. Jeffery, No. 93-6295, 1994 WL

468099, at *9 (10th Cir. Aug. 25, 1994) (unpublished), cert. denied, 513

U.S. 1196 (1995), for the proposition that, in a conspiracy case involving

a scheme to defraud, restitution may not be ordered for acts pursuant

to the scheme but not specifically charged in the indictment. Jeffery,

however, is an unpublished decision that relied on cases from other

circuits involving conduct that predated the 1990 VWPA amendment.

Id. at *9 n.1. In subsequent published cases, the Tenth Circuit has

made clear that the VWPA as amended allows restitution for losses

associated with “the broader scheme” alleged in a count of conviction,

where the offense involves a scheme, conspiracy, or pattern of criminal

activity. United States v. Berger, 251 F.3d 894, 898 n.2 (2001) (citing

United States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996)); see United

States v. Gordon, 480 F.3d 1205, 1211 (2007).

20

Bennett, 943 F.2d at 740 (quoting Hughey, 495 U.S. at

414). Accordingly, as the court of appeals correctly rea-

soned, when.a restitution order is based on a conspiracy

conviction, a court can order restitution for losses re-

sulting from any conduct that was part of the conspiracy

“and not just from specific conduct that met the overt

act requirement of the conspiracy conviction.” Pet. App.

22a (quoting United States v. Reed, 80 F.3d 1419, 1423

(9th Cir.), cert. denied, 519 U.S. 882 (1996)); see United

States v. Hensley, 91 F.8d 274, 277 (1st Cir. 1996)

(“Thus, the outer limits of a VWPA § 3663(a)(2) restitu-

tion order encompass all direct harm from the criminal

conduct of the defendant which was within any scheme,

conspiracy, or pattern of activity that was an element of

any offense of conviction.”); Turino, 978 F.2d at 319

(“because the scheme is an element of the offense of mail

fraud, a conviction for mail fraud can support a convic-

tion for a broad scheme even though the defendant is not

specifically convicted for each fraudulent act -encom-

passed within this scheme”). |

Nor would the fact that petitioner had been acquitted

on some other count preclude a court, under the plain

text of the statute or the reasoning of Hughey, from or-

dering full restitution for the conspiracy count on which

petitioner was convicted. Petitioner’s argument, at bot-

tom, is a challenge alleging “inconsistencies in the jury’s

verdict.” Chaney, 964 F.2d at 452 (rejecting argument

that “[rJestitution under the Victim and Witness Protec-

tion Act is forbidden for losses that may be attributed to

conduct that is the basis of charges for which the defen-

dant is acquitted”) (citation omitted). But “an irreconcil-

able jury verdict does not warrant reversal of a criminal

conviction * * * because each count in an indictment is

to be considered as a separate indictment.” United

21

States v. Walker, 9 F.3d 1245, 1248 (7th Cir. 1993) (cita-

tions omitted), cert. denied, 511 U.S. 1096 (1994). Like-

wise, as at least four. courts of appeals agree, the validity

of.a restitution order as to one count of conviction is not

undermined by a defendant’s acquittal on a separate

count, even where the latter charge involves some of the

same conduct as the former charge.. See United States

v. Boyd, 222 F.3d 47, 51 (2d Cir. 2000) (“[T]he VWPA

confers authority to order a participant in a conspiracy

to pay restitution even on uncharged or acquitted

counts.”); see also United States v. Foley, 508 F.3d 627,

635-636 (11th Cir. 2007); United States v. Booth, 309

F.3d 566, 575-576 (9th Cir. 2002); Chaney, 964 F.2d at

452. That is particularly true here, where petitioner’s

acquittal on a substantive charge of concealing her in-

terest in the Utah condo is not necessarily inconsistent

with a charge that she and her co-conspirators. con-

spired to conceal that asset, among others.

d. Petitioner’s claim (Pet. 37) that the Ninth Cir-

cuit’s interpretation of the VWPA as authorizing restitu-

tion based on acquitted conduct violates her Sixth

Amendment right to trial by jury merits no further re-

view. As discussed below (pp. 22-23, infra), all the cir-

cuits carrectly have held that a court may consider ac-

quitted conduct at sentencing. Furthermore, all nine

courts of appeals to have considered the issue have cor-

rectly rejected the argument that restitution must be

determined by a jury. See United States v. Milkiewicz,

470 F.3d 390, 403-404 (1st Cir. 2006) (collecting cases).

And this case is not a good vehicle for resolving that

issue because, as explained above (p. 15, supra), the res-

titution order did not depend on a finding that the Utah

eondo was illegally concealed, and, moreover, the court

22

of appeals did not address the constitutionality of the

restitution order.

3. Petitioner contends (Pet. 38-40) that her Sixth

Amendment rights were violated because the district

court, in determining her sentence of imprisonment,

relied in part on conduct underlying Count 4, on which

she had been »cquitted. The court’s loss calculation,

however, did not depend ona finding that petitioner ille-

gally concealed the Utah condo, and therefore this case

does not raise the question on which petitioner seeks

review. See p. 15, supra. In any event, as the govern-

ment has explained in briefs in opposition to other peti-

tions raising the acquitted conduct issue, this Court’s

review is unwarranted. See, e.g., Gov’t Br. in Opp. at 8-

13, Mercado v. United States,128 S. Ct. 1736 (2008);

Gov’t Br. in Opp. at 7-13, Ashworth v. United States, 128

S. Ct. 1738 (2008).

In United States v. Watts, 519: U.S. 148 (1997) (per

curiam), this Court held that “a jury’s verdict of acquit-

tai does not prevent the sentencing court from consider-

ing conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of the

evidence.” /d. at 157. Although Watts specifically ad-

dressed a challenge to consideration of acquitted con-

duct based on double jeopardy principles rather than the

Sixth Amendment, the clear import of the Court’s deci-

sion is that sentencing courts may take acquitted con-

duct into account at sentencing without offending the

Constitution. See zbid. That principle predated the

Sentencing Guidelines, see id. at 152, and it fully applies

to the advisory Guidelines put in place by United States

v. Booker, 543 U.S. 220 (2005).

Since Booker, every court of appeals has held that a

district court may consider acquitted conduct at sen-

23

tencing. See United States v. Jimenez, 513 F.3d 62, 88

(3d Cir.), cert. denied, 07-1291, 2008 WL 1751518 (May

12, 2008): United States v. Ashworth, 247 Fed. Appx.

409, 410 (4th Cir. Sept. 6, 2007), cert. denied, 128 S. Ct.

1738 (2008); United States v. Mendez, 498 F.3d 423, 426-

427 (6th Cir. 2007); United States v. Hurn, 496 F.3d 784,

788 (7th Cir. 2007), cert. denied, 128 S. Ct. 1737 (2008);

United States v. Mercado, 474 F.3d 654, 656-658 (9th

Cir. 2007), cert. denied, 128 S. Ct. 1786 (2008); United

States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United

States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir.

2006), cert. denied, 127 S. Ct. 1502 (2007); United States

v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United

States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.), cert

denied, 127 S. Ct. 691 (2006); United States v. Vaughn,

430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547

U.S. 1060 (2006); United States v. Magallanez, 408 F.3d

672, 684-685 (10th Cir.), cert. denied, 546 U.S. 955

(2005); United States v. Duncan, 400 F.3d 1297, 1304-

1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).®

This Court has recently denied petitions raising the

issue. See, e.g., Hurn v. United States, 128 S. Ct. 1737

(2008); Mercado v. United States, 128 S. Ct. 1736 (2008);

Ashworth v. United States, 128 S. Ct. 1788 (2008).

There is no reason for a different result here.”

® After the Sixth Circuit in Mendez upheld a district court’s consider-

ation of acquitted conduct at sentencing, it granted rehearing en banc

in a separate case raising the same issue. See United States v. White,

503 F.3d 487 (2007) (vacated and rehearing en bane granted by un-

published order dated November 30, 2007; argued June 4, 2008).

* Contrary to petitioner’s suggestion, there is no need to hold this

case pending the Court’s decision in Oregon v. Ice, cert. granted,

No. 07-901 (Mar. 17, 2008), which raises the separate question whether

the Sixth Amendment is violated by the imposition of consecutive

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Acting Solicitor General

MATTHEW W. FRIEDRICH

Acting Assistant Attorney

General

SANGITA K. RAO

Attorney

JUNE 2008

sentences based on a fact (other than a prior conviction) that was not

found by the jury or admitted by the defendant.