U.S. v. Simtob

• Citation: 485 F.3d 1058
• Decision Date: 11 May 2007
• Docket Number: No. 06-30120.,No. 06-30275.,06-30120.,06-30275.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Solomon Bitton SIMTOB, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Solomon Bitton Simtob, aka Simon Simtob, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

485 F.3d 1058

UNITED STATES of America, Plaintiff-Appellee, v. Solomon Bitton SIMTOB, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Solomon Bitton Simtob, aka Simon Simtob, Defendant-Appellant.

No. 06-30120.

No. 06-30275.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2007.

Filed May 11, 2007.

Anthony R. Gallagher, Federal Defender, David F. Ness (argued), Assistant Federal Defender, Great Falls, MT, for the appellant.

William M. Mercer, United States Attorney, Carl E. Rostad (argued), Assistant United States Attorney, Great Falls, MT, for the appellee.

Appeals from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. Nos. CR-96-00025-SEH, CR-05-00130-SEH.

Before RAYMOND C. FISHER and RICHARD C. TALLMAN, Circuit Judges, and DAVID ALAN EZRA,^* District Judge.

EZRA, District Judge.

Appellant Solomon Bitton Simtob raises three issues in this consolidated appeal from the district court's sentence following revocation of his supervised release and from his conviction and sentence. We first address whether, in light of United States v. Miqbel, 444 F.3d 1173 (9th Cir.2006), the sentence imposed following revocation of Simtob's supervised release was reasonable. We next address whether the district court abused its discretion when it failed to conduct an inquiry of a juror concerning a complaint that Simtob was "eye-balling" the juror and that the juror felt "threatened." Finally, Simtob challenges the reasonableness of the sentence imposed for his conviction.

Because the district court rendered the decision to revoke Simtob's supervised release without the benefit of Miqbel, we vacate the revocation sentence and remand for reconsideration in light of our directives set forth in Miqbel and clarified herein. We also vacate Simtob's conviction and remand for the district court to determine whether Simtob's alleged misconduct toward the juror resulted in a biased jury. Because we vacate Simtob's conviction, we also vacate Simtob's sentence for that conviction, rendering Simtob's challenge to the reasonableness of his sentence moot.

Factual and Procedural History

On June 21, 1996, Simtob was indicted on various federal drug charges ("1996 indictment"). Following a jury trial held in April 1997, Simtob was convicted of the following offenses: Count I, Conspiracy to Distribute Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; Count II, Possession of Cocaine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1); and Count IV, Possession of Cocaine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1). On July 29, 1997, Simtob was sentenced to 41 months imprisonment followed by a six year term of supervised release.

On August 4, 2005, a United States Probation Officer filed a petition to revoke Simtob's supervised release on the 1996 indictment. Almost two months later, on September 26, 2005, Simtob was indicted again on federal drug charges and on an obstruction of justice charge that flowed from the conduct underlying the petition to revoke ("2005 indictment"). Consequently, the revocation proceedings on the 1996 indictment were stayed pending the outcome of the prosecution on the 2005 indictment.

On December 27 and 28, 2005, a jury trial was held on the 2005 indictment. At the end of the first day, in open court and outside of the presence of the jury, the district court informed counsel that a juror had reported that Simtob had been "eye-balling" the juror and that the juror felt threatened by that conduct. The court then cautioned Simtob that neither he nor anyone else was allowed to intimidate anyone in the courtroom. The court further stated that, upon indication of such conduct in the future, it would take appropriate measures to deal with the situation at that time, and it again emphasized its intolerance of such behavior. When asked if the court's instructions were clear, Simtob responded that they were, and that he had not looked at anyone in particular. "I look at everybody," Simtob claimed. The district court did not make any inquiry of the complaining juror regarding the "eye-balling" incident.

At the start of the second day of trial, Simtob's counsel raised a concern that, because of Simtob's alleged misconduct, a juror may have made up his or her mind about the verdict already. Counsel asked that the juror be replaced with an alternate to avoid any problems associated with the juror's perceptions. The Government responded that, if any action were taken, which it thought unnecessary, the court should inquire of the juror or hold an in-camera hearing to determine whether the juror in fact had prematurely made up his or her mind about Simtob's guilt. The district court ruled that the jury had been "repeatedly admonished not to make up its mind about any issue," that it was "absolutely satisfied that the jury ha[d] taken those admonishments appropriately," and that it saw "no reason to inquire further into th[e] matter. . . ." In reaching that conclusion, the court emphasized that Simtob "disavowed having engaged in any such conduct." Ultimately, the court decided that the "issue is best left where it is," seeing no need to replace the juror.

Simtob was subsequently convicted on Counts I and II for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(b)(1)(B) and distribution of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(C) ("2005 conviction"). Simtob was acquitted on the obstruction charge.

On February 8, 2006, before Simtob was sentenced for the 2005 conviction, the court held a hearing on the revocation of supervised release concerning the 1996 indictment. The district court found that, contrary to Simtob's arguments, Simtob was on supervised release when he committed the violations leading to the 2005 conviction. Emphasizing that the offense underlying the revocation was the same offense that led to Simtob's 2005 conviction, the court found that Simtob violated the terms of his supervised release, the violation was a Class A violation, and the severity of the conduct required revocation. The court concluded that the evidence, as a whole, demonstrated "a continued pattern of unlawful behavior by [Simtob] that is representative of what [he][had] done over the years on a repeated basis." The court, moreover, determined that Simtob's "very serious conduct" warranted imposition of the maximum statutory penalty. It also found that the Guidelines range was "inadequate to address the seriousness of the defendant's violation, and all of the circumstances of the current violations." Consequently, the court sentenced Simtob to the statutory maximum of three years in custody with no supervised release.

On April 3, 2006, the court sentenced Simtob for the 2005 conviction, finding the recommended Guidelines range of 78 to 97 months inadequate and sentencing Simtob to 240 months imprisonment on Count I and to 97 months on Count II, to be served concurrently, followed by eight years of supervised release on Count I and six years on Count II, to be served concurrently.

Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review sentences, including those imposed upon revocation of supervised release, for reasonableness. See Miqbel, 444 F.3d at 1176 n. 5 (citing Booker, 543 U.S. at 261-62, 125 S.Ct. 738). We review a district court's decision not to conduct an inquiry of a juror or to hold an evidentiary hearing concerning a defendant's alleged misconduct toward a juror for an abuse of discretion. See United States v. Long, 301 F.3d 1095, 1101 (9th Cir.2002) (per curiam).

Discussion

I. Reasonableness of the revocation sentence

Simtob challenges the district court's imposition of his sentence upon revocation of his supervised release. Specifically, Simtob argues that his revocation sentence is unreasonable because the court relied on the seriousness of the offense underlying the revocation when determining his sentence, in contravention of Miqbel. The Government responds that, even if that consideration were improper, the court rested its sentencing decision on other permissible factors, such as Simtob's continued pattern of unlawful conduct. Thus, the Government argues that Simtob's sentence should stand.

On February 8, 2006, the district court sentenced Simtob to the maximum statutory penalty of three years for violating his supervised release. Since then, we have issued a decision that provides further guidance concerning what district courts may properly consider in revocation sentencing. See Miqbel, 444 F.3d 1173. In Miqbel, we determined that certain considerations under 18 U.S.C. § 3553(a)(2)(A) (2003) that are proper for general sentencing purposes—such as the need to "promote respect for the law" and "to reflect the seriousness of the [underlying] offense"—are not proper for the purpose of sentencing upon revocation of supervised release. Miqbel, 444 F.3d at 1181-82. That is so because the section of the statute dealing with revocation sentencing considerations, 18 U.S.C. § 3583(e), specifically omits 18 U.S.C. § 3553(a)(2)(A) from consideration. See id. Additionally, given the purpose of sentencing upon revocation of supervised release to sanction for a "breach of trust," the considerations under 18 U.S.C. § 3553(a)(2)(A) would be inappropriate and unnecessary to achieve that purpose. See United States Sentencing Guidelines Manual ("U.S.S.G.M.") Ch.7, Pt. A(3)(b) (2006). Accordingly, we held that "a court may appropriately sanction a violator for his `breach of trust,' but may not punish him for the criminal conduct underlying the revocation." Miqbel, 444 F.3d at 1182.

We take this opportunity to clarify the directives set forth in Miqbel. Contrary to Simtob's contention, we did not set forth a blanket proposition that a court in no circumstances may consider the seriousness of...