United States v. Yamashiro

• Decision Date: 12 June 2015
• Docket Number: No. 12–50608.,12–50608.
• Citation: 788 F.3d 1231
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Steven Boyle YAMASHIRO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

788 F.3d 1231

UNITED STATES of America, Plaintiff–Appellee

v.Steven Boyle YAMASHIRO, Defendant–Appellant.

No. 12–50608.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2014.

Filed June 12, 2015.

Sean K. Kennedy, Federal Public Defender, and Gail Ivens, Deputy Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

André Birotte, Jr., United States Attorney, Robert E. Dugdale and Jamie A. Lang, Assistant United States Attorneys, Los Angeles, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Otis D. Wright, II, District Judge, Presiding. D.C. No. 2:11–CR–217–ODW–1.

Before: BARRY G. SILVERMAN, CARLOS T. BEA, Circuit Judges, and ROBERT HOLMES BELL, District Judge.^*

Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

BELL, District Judge:

Steven Yamashiro appeals his conviction and sentence for wire fraud and money laundering. We affirm his conviction, but vacate his sentence as a result of structural error and remand for resentencing before a different judge.

I. Factual Background

From December 2005 to December 2007, Steven Yamashiro, a registered investment advisor and securities agent, engaged in a scheme to defraud his clients. The scheme involved more than ten victims and more than $3.5 million. Yamashiro was charged with eight counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of money laundering in violation of 18 U.S.C. § 1957, and two asset forfeiture claims pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 982. On December 27, 2011, Yamashiro pleaded guilty to two counts of wire fraud (Counts 1 & 6) and one count of money laundering (Count 10). Yamashiro waived any right to appeal his convictions, except a claim based on an involuntary plea. He also waived his right to appeal a sentence of 78 months or less.

The Probation Office calculated a total offense level of 26 and a criminal history category of I, resulting in a Sentencing Guidelines range of 63–78 months of imprisonment. The Probation Office recommended a low-end sentence of 63 months.

On September 17, 2012, the day scheduled for sentencing, Yamashiro requested a substitution of counsel. The district court granted the motion, set a new date for sentencing, and released Yamashiro's original counsel from further representation. Although Yamashiro's newly substituted counsel had not yet arrived in court, the court agreed to listen to allocution from the victim witnesses who were in attendance so that their travel to court would not be in vain. The court requested Yamashiro's original counsel who had just been released to stay for the victim allocution until Yamashiro's newly substituted counsel arrived, but advised him that he did not have to do anything.

Glenn Hale, the first victim witness, described his relationship of trust with Yamashiro, and the devastating consequences the fraud had on his life. He requested that the court impose the maximum penalty. After Hale completed his allocution, Yamashiro's new counsel arrived in court and was present during the allocution of the next five victim witnesses.

Three months later, at the start of the second phase of the sentencing hearing, the district court denied defense counsel's letter request for withdrawal of the plea. The court heard additional allocution from victim witnesses, and then sentenced Yamashiro to 63 months on each of the three counts, to run consecutively, for a total sentence of 189 months in prison and restitution of $3,911,457.

II. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 1291.

III. Discussion

A. Denial of Counsel

Yamashiro contends that the district court committed plain error when it allowed victim allocution to proceed without counsel present. Yamashiro did not object to this alleged error before the trial court. Accordingly, we review for plain error. Fed.R.Crim.P. 52(b).

In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508, (1993), the United States Supreme Court identified four steps or prongs to plain-error review under Rule 52(b). Id. at 732–36, 113 S.Ct. 1770. We have summarized the Olano test as follows:

(1) there must be an error or defect ... that has not been ... affirmatively waived by the appellant (2) the legal error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected the appellant's substantial rights; and (4) if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error ... if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Mageno, 762 F.3d 933, 940 (9th Cir.2014) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted)).

The alleged error in this case concerns the denial of the right to counsel. The Sixth Amendment right to counsel attaches at all critical stages of a criminal prosecution. Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir.2006) (citing United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ). “A critical stage is any ‘stage of a criminal proceeding where substantial rights of a criminal accused may be affected.’ ” Id. (quoting Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ). It has long been understood that sentencing is a “critical stage” at which a defendant is entitled to counsel. United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir.2003) (citing Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) ); see also Mempa, 389 U.S. at 136–37, 88 S.Ct. 254 (holding that a deferred sentencing hearing is a critical stage despite the limited discretion afforded the sentencing judge).

While conceding that sentencing is a critical phase and that victim Hale's allocution occurred during a sentencing hearing, the government nevertheless contends that victim allocution is not a critical stage because crime victims have a nearly unfettered right to be heard at sentencing under the Crime Victims' Rights Act (“CVRA”), 18 U.S.C. § 3771(a)(4), and are not subject to cross-examination or other “trial-like confrontations.”

“[T]he essence of a ‘critical stage’ is not its formal resemblance to a trial, but the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel.” Leonti, 326 F.3d at 1117. The CVRA provides victims the right to be heard at sentencings. 18 U.S.C. § 3771(a)(4). Among the purposes of the CVRA is to make victims “full participants” in the sentencing process and to “ensure that the district court doesn't discount the impact of the crime on the victims.” Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir.2006). Victim allocution provides the court with information it may use in sentencing the defendant. Because the victim statements may influence the resulting sentence, substantial rights of the defendant may be affected. Victim allocution is thus part of the adversarial sentencing procedure.

There is also a possibility of significant prejudice if counsel is not present to hear what was said, how it was said, and how it was received by the court. This case provides a particularly clear illustration of the critical nature of victim allocution. Hale's testimony was compelling, and the trial court readily acknowledged that he was influenced by the victims' allocution because it increased his understanding of the human impact of Yamashiro's conduct.

Yamashiro's Sixth Amendment right to counsel was violated by the court's decision to proceed with victim allocution in the absence of trial counsel during a portion of Yamashiro's critical sentencing stage. The denial of counsel is error that is not subject to reasonable dispute, and Yamashiro did not affirmatively waive his right to counsel at this critical stage. Accordingly, this clear and obvious error satisfies the first two prongs of the Olano plain-error test.

The government argues that even if the proceeding violated Yamashiro's right to counsel, any violation was trivial, and amounts to harmless error in light of the fact that only one victim spoke, his allocution was not subject to cross-examination, his statement was recorded, and he appeared again at the continuation of Yamashiro's sentencing.

Most trial errors are subject to harmless-error analysis. However, certain errors fall within the class of “structural defects in the constitution of the trial mechanism” that “defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “[T]he Sixth Amendment right to counsel is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’ ” United States v. Hamilton,

391 F.3d 1066, 1070 (9th Cir.2004) (quoting Chapman v. California, 386 U.S. 18, 23 & n. 5, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). “[T]he absence of counsel during a critical stage of a criminal proceeding is precisely the type of ‘structural defect’ to which no harmless-error analysis can be applied.” 391 F.3d at 1070 (citation omitted).

Yamashiro was not represented by anyone when the allocution phase of his sentencing proceeding began. His counsel had been dismissed, and his new counsel had not yet arrived. We have held that the denial of the right to counsel at sentencing is structural error. Robinson v. Ignacio, 360 F.3d 1044, 1061 (9th Cir.2004) (“Because of the fundamental importance of the right to counsel [at sentencing], Robinson need not prove prejudice and a harmless error analysis is not required.”).¹

We conclude that the denial of counsel during a portion of the allocution phase of the sentencing proceeding was structural error, that the error was complete when the right to counsel was denied, and that no additional showing of prejudice was required.

In most cases, the requirement of the plain...