U.S. v. Monaco

• Decision Date: 26 July 1988
• Docket Number: Nos. 87-1011,87-1013,s. 87-1011
• Citation: 852 F.2d 1143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank D. MONACO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel MONACO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1143

852 F.2d 1143

UNITED STATES of America, Plaintiff-Appellee, v. Frank D. MONACO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel MONACO, Jr., Defendant-Appellant.

Nos. 87-1011, 87-1013.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 13, 1988.

Decided July 26, 1988.

J. Toney, Toney & Trivellini, Woodland, Cal., Malcolm Segal and James R. Kirby, II, Segal & Kirby, Sacramento, Cal., for defendants-appellants.

David F. Levi, U.S. Atty., and George L. O'Connell, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before ALDISERT, ^* ALARCON and HALL, Circuit Judges.

ALARCON, Circuit Judge:

Frank D. Monaco and Daniel Monaco, Jr. have appealed from the judgment entered following their pleas of guilty. They do not challenge the validity of their pleas. Instead, they contend that the district court erred prejudicially in its conduct of sentencing proceedings.

In resolving one of the issues in this appeal, we must decide for the first time whether a district court has the discretion to grant or deny an evidentiary hearing whenever a defendant challenges the accuracy of a statement in a presentence report.

I. PERTINENT FACTS

Frank Monaco founded Golden Plan of California, Inc. (Golden Plan) in 1974. Golden Plan operated as a broker of loans secured by real property. On September 1, 1981, Frank Monaco sold Golden Plan to his brother, Daniel Monaco. On January 28, 1982, Golden Plan closed its doors. In February 1982, an involuntary bankruptcy petition under Chapter 11 was filed against Golden Plan.

On March 29, 1985, a federal grand jury returned an eighty-nine count indictment against Frank Monaco and Daniel Monaco. Also named in the indictment were Samuel Monaco, Gregory Monaco, Denise Monaco, Tony Monaco, and Donald Sapronetti. The indictment alleged conspiracy to commit mail fraud, mail fraud, causing stolen securities to be transported in interstate commerce, concealment of documents, perjury before a grand jury and causing an act to be done. The charges arose out of a scheme to defraud investors which allegedly took place from February 1977 until January 28, 1982. The defendants were accused of inducing investors to make secured loans by falsely describing a property and inflating its value. As a result of the false representations, these loans were undersecured. Thus, when Golden Plan went bankrupt, the investors lost large sums of money.

Frank Monaco was charged in the indictment with one count of conspiracy to commit mail fraud and fifty-one separate counts of mail fraud. Daniel Monaco was charged with one count of conspiracy to commit mail fraud, thirty-three counts of mail fraud, one count of making a false statement to a bank, one count of concealment of documents in contemplation of bankruptcy, and one count of perjury before the grand jury.

On July 18, 1986, Frank Monaco pleaded guilty to the conspiracy charge and one count of tax evasion. On that same day, Gregory Monaco pleaded guilty to one count of mail fraud and one count of tax evasion, Tony Monaco pleaded guilty to one count of mail fraud, and Donald Sapronetti pleaded guilty to one count of mail fraud. On August 12, 1986, Daniel Monaco pleaded guilty to one count of mail fraud and Denise Monaco pleaded guilty to one count of concealing company records from a bankruptcy court. Samuel Monaco had previously pleaded guilty to three felony charges in September 1985. All of the pleas were entered pursuant to plea agreements.

Sentencing for all defendants, except Denise Monaco, was scheduled for October 14, 1986. Denise Monaco's sentencing was scheduled for October 20, 1986. Because of various delays, sentencing did not take place until January 1987.

In mid-October 1986, the defendants and the Government received individual presentence On December 2, 1986, the Government filed a sentencing memorandum. The Government attached a book of exhibits to this memorandum, seeking to establish the individual responsibility of Frank Monaco and Daniel Monaco for the losses due to the conspiracy, mail fraud, and tax evasion counts.

reports from the United States Probation Office. Frank Monaco filed a number of objections to his report with the Probation Office. After two meetings between Frank Monaco and the Probation Office, during which the objections were discussed, corrections were made to the report and it was reissued in November 1986.

On December 30, 1986, both Frank Monaco and Daniel Monaco filed objections in the district court to their presentence reports. At this time, both defendants asked the court to hold an evidentiary hearing regarding their objections. Frank Monaco also filed a sentencing memorandum and a response to the Government's sentencing memorandum.

On January 6, 1987, the district court sentenced Frank Monaco, Gregory Monaco, Daniel Monaco and Donald Sapronetti. Gregory Monaco was sentenced to prison for two years for tax evasion and for five years for mail fraud, the sentences to run consecutively. Donald Sapronetti was sentenced to two years in prison for mail fraud.

Daniel Monaco's request for an evidentiary hearing was denied. The district court held that the presentence report did not contain any factual inaccuracies. Daniel Monaco was sentenced to five years in prison for mail fraud.

The district court overruled Frank Monaco's objections to his presentence report. The request for an evidentiary hearing was denied. The court held that there were no factual inaccuracies in the report. Frank Monaco was sentenced to consecutive five-year prison terms for tax evasion and for conspiracy to commit mail fraud. He was also fined $10,000 on each count.

Samuel Monaco was sentenced on February 25, 1986 to a total of ten years in prison. Denise Monaco was sentenced on January 12, 1987 to five years probation and 500 hours community service. On January 12, 1987, Tony Monaco was sentenced to five years probation and ordered to pay $43,927 in restitution.

II. QUESTIONS ON APPEAL

In this consolidated appeal, Frank Monaco and Daniel Monaco, Jr., present the following questions:

(1) Whether the trial judge abused his discretion when he refused to recuse himself from imposing sentence on Frank Monaco.

(2) Whether the district court abused its discretion when it refused to grant Frank Monaco's request for an evidentiary hearing so that he could examine witnesses and rebut the alleged inaccuracies in his presentence report.

(3) Whether the district court imposed a mechanical sentence on all the defendants in this action, without considering individual characteristics or culpability.

(4) Whether the district court abused its discretion when it denied Daniel Monaco's request for an evidentiary hearing on the issue of whether the federal prison system had the necessary facilities to treat his medical problems adequately.

III.

FRANK MONACO'S APPEAL

A. Recusal

In his motion to correct his presentence report, Frank Monaco suggested that the trial judge should consider recusing himself because he had reviewed an overwhelming amount of "prejudicial and conclusory material provided by the government...." In making the suggestion, Frank Monaco stated that the request was "not in the belief that the court has any preexisting animosity to the defendant or prejudice against him." The trial judge refused to recuse himself.

Before this court, Frank Monaco argues that the refusal of the trial judge to recuse himself was reversible error because he had reviewed material in sentencing four codefendants on the same day. Frank Monaco also asserts that the record shows that trial judge's bias against him surfaced during the sentencing of one of his codefendants and during his own sentencing. We disagree.

We have held that "[w]e will reverse a district court's denial of a motion for recusal only if the decision was an abuse of discretion." United States v. Branco, 798 F.2d 1302, 1304 (9th Cir.1986).

28 U.S.C. Sec. 455(a) (1982) states that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." "The alleged prejudice must result from an extrajudicial source...." United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). "Parties cannot attack a judge's impartiality on the basis of information and beliefs acquired while acting in his or her judicial capacity." United States v. Frias-Ramirez, 670 F.2d 849, 853 n. 6 (9th Cir.), cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982). "An exception to that rule is made when a judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party." Hamm v. Members of Bd. of Regents of State of Florida, 708 F.2d 647, 651 (11th Cir.1983).

We have reviewed the record and the transcripts of the sentencing hearings in this case. The trial judge did not abuse his discretion in refusing to recuse himself. The trial judge's statements concerning Frank Monaco did not emanate from an extrajudicial source. The judge's comments are supported by the evidence presented during the course of Frank Monaco's sentencing proceedings.

Furthermore, the comments made by the judge do not demonstrate pervasive bias or prejudice. These statements simply reflect that the judge was appropriately outraged at the enormity of the crime that had taken place and upset with the fact that the parties were not taking responsibility for their crimes.

We have held previously that knowledge obtained from judicial proceedings involving a codefendant does not require recusal. See United States v. Winston, 613 F.2d 221, 223 (9th Cir.1980) (knowledge obtained during a pretrial competency hearing for a codefendant did not require recusal); United States v. Azhocar, 581 F.2d 735, 740 (9th Cir.1978) (remarks based on information...