United States v. Vixamar

• Decision Date: 11 May 2012
• Docket Number: 11–1251.,Nos. 11–1217,s. 11–1217
• Citation: 679 F.3d 22
• Parties: UNITED STATES of America, Appellee, v. Imartha VIXAMAR, Defendant, Appellant. United States of America, Appellee, v. Mary Saintfleur, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

679 F.3d 22

UNITED STATES of America, Appellee,

v.Imartha VIXAMAR, Defendant, Appellant.

United States of America, Appellee,

v.Mary Saintfleur, Defendant, Appellant.

Nos. 11–1217, 11–1251.

United States Court of Appeals, First Circuit.

Heard Feb. 9, 2012.

Decided May 11, 2012.

J. Martin Richey, Federal Defender Office, for appellant Imartha Vixamar.

Daniel Klubock, with whom Feinberg & Kamholtz was on brief, for appellant Mary Saintfleur.

Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN, LIPEZ, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Overview

Imartha Vixamar and Mary Saintfleur think the district judge got it all wrong when he revoked their probation and resentenced them to prison terms above the ranges recommended by the Sentencing Commission.¹ We think the opposite and affirm.

Probation

Back in June 2009, Vixamar and Saintfleur pled guilty to two counts each of passport fraud. See18 U.S.C. § 1542. According to their testimony at the sentencing hearing held a little later, this is how that crime went down: Following Vixamar's lead, Saintfleur applied for a new passport sometime in 2007, falsely claiming that someone had stolen her old one. Vixamar gave Saintfleur a photo to hand in with the application, promising her $1,000 for her troubles. Vixamar later picked up the passport, hightailed it to Haiti, and passed it on to another woman there.

Getting off with probation, Vixamar and Saintfleur pledged not to consort with convicted felons without probation's okay and, commonsensically enough, not to commit future crimes either. They also promised to file truthful and complete monthly supervision reports with probation, to notify probation within 72 hours of their being questioned or arrested by police, and to remain regularly employed and to notify probation of employment changes at least 10 days in advance. On top of that, Vixamar agreed not to work at any healthcare job that gave her access to “patient valuables” unless she first told her employer or the patients about her criminal past and let probation confirm that she had done that—a condition imposed because of her 2007 convictions for stealing, forging, and cashing checks from elderly patients at assisted-living facilities where she had worked; a striking example is her having stolen checks and a credit card from a 96–year–old resident of a life-care center in Randolph, Massachusetts, taking her for thousands of dollars.

The duo could have received harsher sentences. Passport fraud in cases like theirs is punishable by up to 10 years in prison on each count, see id., and Vixamar's advisory Guidelines sentencing range (“GSR”) was 12 to 18 months in prison, while Saintfleur's was 18 to 24 months. But the district judge instead sentenced them both to 36 months' probation, with 9 months of home confinement for Vixamar and 5 months for Saintfleur. The judge put a lot of thought into Vixamar's sentence. Reviewing all the evidence from the sentencing hearing, the judge found that Vixamar had come up with the passport-fraud scheme—that is what Saintfleur had testified to—and had lied to investigators and to him under oath in a desperate bid to duck responsibility. But because (among other things) she was still nursing her infant daughter, the judge decided on probation, even though he was not convinced that she had grasped how serious her offense was. And he warned her and Saintfleur that if they did not live up to their probation obligations, they would probably go to prison.

Violations

Vixamar and Saintfleur did not stay out of trouble for long, returning to federal court in January 2011 on probation-violationcharges. The gist of the charges was this: Randolph police had arrested Saintfleur for depositing into her account in September 2010 a $4,000 check stolen from Lois Gibbs, an elderly, mentally-incompetent Randolph resident receiving in-home hospice care. The check was dated August 29, 2010. Saintfleur had reported to probation that she had no checking account in her name and had received only $200 for that entire month. She also had said nothing to probation about the arrest. Saintfleur had no ties to Gibbs. But Vixamar did through her work as a certified nursing assistant (“CNA”) for Clinical One, a healthcare-staffing company that had placed her with Gibbs right around the time that the check went missing. The theory was that Vixamar had swiped the check and handed it off to Saintfleur. Compounding her problems, Vixamar had not filled in Clinical One on her criminal past, had falsified her job application—giving the company her husband's last name (“Jacques”) rather than the one she normally went by (“Vixamar”), and jotting down a false social-security number and date of birth—and had created a false job reference too. She also had kept probation in the dark about her Clinical One job, and neither she nor Saintfleur had ever told probation about their interacting with each other. Making matters worse for Saintfleur, law enforcement had a video of her helping a “friend” deposit a $6,000 check stolen from an elderly resident of a Reading, Massachusetts, nursing home where she had worked as a CNA. Unsurprisingly, Saintfleur had never clued probation in to the fact that she had worked there for two months until she was fired in November 2010, and she had never notified probation that the Reading police had contacted her. All of this resulted in the pair's getting hit with five probation-violation charges apiece, though some of Saintfleur's charges had several subparts.

A magistrate judge held a preliminary revocation and detention hearing, seeFed.R.Crim.P. 32.1(b)(1), and, after listening to testimony from a probation officer, concluded that probable cause existed for two of the charges against Vixamar (arising from (a) her not telling probation about her Clinical One job and (b) her falsifying her Clinical One job application) and for four of the charges against Saintfleur (stemming from (a) her depositing the stolen Gibbs check and (b) her not telling probation how police had questioned and arrested her or how she had worked for and gotten fired by the nursing home). Pertinently for present purposes, the magistrate judge found that the government had offered no evidence to bolster the charges that centered on Vixamar's involvement in the Gibbs check-cashing scheme or their associating with each other. And he ultimately released the two to home confinement with electronic monitoring pending the final revocation hearing.

Revocation and Resentencing

That hearing happened ten months later before the same district judge who had sentenced them originally. SeeFed.R.Crim.P. 32.1(b)(2). Vixamar's and Saintfleur's counsel started off by saying that their clients would admit to all the charges that the magistrate judge had found probable cause for, but not to the others. And the prosecutor indicated that the government did not intend to proceed on these other charges anyway. Not so fast, said the judge. The magistrate judge had to decide only whether to detain or release the defendants, the judge added, but he (the district judge) had to decide whether to revoke their probation and resentence them. Given their different tasks, “whatever the magistrate did is not binding on me.” ² “I regard this, across the board, as an extremely serious matter,” said the judge, “and I'm not going to let it go until I've reliably found the facts.”

Saintfleur was sworn in, and, responding to the judge's questions, she admitted all the charges against her except the association one. She confessed to a lot of things, including that she had known all along that the Gibbs check was a stolen check and that she had later helped a friend deposit the stolen $6,000 check too. But, she insisted, neither she nor Vixamar had stolen the Gibbs check. A “friend of mine,” a woman named “Nerlande Sanon,” had, she said.³

Hoping to get to the bottom of this, the judge set the matter down for a formal evidentiary hearing. Before the government presented its case, the judge questioned Vixamar under oath, and she conceded that she had falsified her Clinical One job application, had not come clean with Clinical One about her prior convictions, and had not told probation about her Clinical One job. But she denied the remaining charges. The judge then went over the ground rules for the hearing, stressing that he could revoke probation if the proof, “reasonably” viewed, “satisfied” him that a violation had occurred. See, e.g., United States v. DiIanni, 87 F.3d 15, 17 (1st Cir.1996). “But it may require a preponderance of the evidence to satisfy me,” he added.⁴ The judge asked whether anyone disagreed with that. And no one did.

The judge then heard testimony from a number of government witnesses, including John Bringardner, a Randolph detective who spoke about the Gibbs-check theft; Melissa Knybel, a Clinical One director who talked about Vixamar's placement with Gibbs; and Nerlande Sanon (one of two Nerlande Sanons living in the area, a government search revealed), who testified about knowing Saintfleur but who denied knowing Vixamar or Gibbs or having a hand in the Gibbs-check heist. Neither Vixamar nor Saintfleur took the stand again (so the government never cross-examined them at the evidentiary hearing), and neither called any witnesses either.

After hearing evidence and argument, the judge found that Vixamar and Saintfleur had proven themselves to be incorrigible “frauds and liars” with “a history of conspiring with each other to commit crimes by using false documents.” And he concluded that the government had proven “by far more than” a preponderance of the evidence that the two had committed the violations that they had admitted to, and also that Vixamar had stolen the Gibbs check and had worked with Saintfleur to have it forged and deposited. Vixamar's fate would have been the...