Metropolitan News-Enterprise


Thursday, June 21, 2001


Page 1


Ninth Circuit Upholds Higher Sentence for Providing False Information to Get Appointed Counsel



By a MetNews Staff Writer


Providing false financial data to a federal court in order to qualify for appointed counsel warrants an upward adjustment in the sentence, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In upholding the two-level enhancement to the sentence of a Huntington Beach tax preparer convicted on tax charges, the court compared the defendant’s false assertions to a magistrate judge about his ability to pay for a lawyer to a defendant’s false statements to a probation officer.

In either case, Judge Pamela Ann Rymer said, the defendant has obstructed justice, even if it turns out he would have been eligible for the federal public defender without providing false information.

“Without doubt, Hernandez’s providing information that he had significant debt and essentially no assets ‘would tend to influence or affect’ whether the magistrate judge found him qualified for appointed counsel,” Rymer said, quoting the application notes for Sentencing Guidelines Sec. 3C1.1. “Thus, the information was material, whether or not it actually affected the judge’s decision.”

Juan Hernandez-Ramirez was charged in June 1998 with helping to prepare false tax returns and other tax violations.

In listing his assets for the probation office, he noted that he had bought the Time Out Sports Bar and Grill in Hemet, and that it was paying him about $1,300 a month.

He brought the bar in 1997 for $85,000 and was paying on a $40,000 note.

At his initial appearance before a federal magistrate judge, Hernandez signed and submitted an affidavit in support of a request for a free lawyer. In it, he listed a $35,000 business debt with a monthly payment of $670. He did not mention his $45,000 equity interest in the bar in Hemet.

The magistrate judge found Hernandez eligible for appointed counsel.

But he was convicted, and at sentencing the prosecutors sought the adjustment based on his statements.

Hernandez argued that he was not the registered owner of the bar, since he had used the name of one of his clients to help get the liquor license. Besides, he said, he had fallen behind in payments on his note, and he thought that meant he had lost his ownership interest.

The sentencing judge found it unlikely that Hernandez did not know that the reason for the affidavit was to determine his financial status.

Rymer pointed out that the defendant was a professional tax preparer who should have been familiar with the concepts of assets and liabilities.

“If, as Hernandez contends, he did not believe that he owned the bar because he was not its nominal owner, or because he was unable to make payments on the note and assumed he would lose his interest, then he would have no debt,” Rymer said. “Either way, the affidavit was willfully false.”

Rymer also rejected Hernandez’s assertion that there is no relationship between violating the Tax Code—the underlying offense—and omitting material information on a financial affidavit submitted to a magistrate judge.

It did not matter whether there was a relationship, the judge said. Sec. 3C1.1 of the Sentencing Guidelines was not meant to add a requirement that the obstructive conduct relate substantively to the underlying offense, she said, but merely to resolve a split among circuits and make it clear how to apply the enhancement.

Rymer was joined by Judges Dorothy W. Nelson and Ferdinand F. Fernandez.

The case is U.S. v. Hernandez-Ramirez, 99-50354.


Copyright 2001, Metropolitan News Company