Monday, May 19, 2003
No Fine Reduction for Corrupt Ex-IRS Official, Ninth Circuit Rules
District Judge Lacked Jurisdiction to Help Ex-Auditor Whose Pension Is Dunned to Pay Penalty for Taking Bribes, Panel Says
By KENNETH OFGANG, Staff Writer/Appellate Courts
Federal judges have no authority to vacate or reduce criminal fines more than seven days of sentencing, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court affirmed a ruling by Senior U.S. District Judge Gordon Thompson of the Southern District of California that he lacked jurisdiction to help Robert Morales Sr., a former IRS auditor who has less than $1,000 a month for living expenses after more than 60 percent of his pension is applied to his fine for accepting bribes.
Morales, of El Cajon, was a defendant in what prosecutors described as the biggest employee corruption case in the history of the Internal Revenue Service. Originally charged with more than 200 counts, he pled guilty in 1991 to conspiracy to defraud the government, money laundering, official corruption and tax fraud.
Prosecutors described a 10-year scheme in which Morales took bribes, then concealed the money by setting up dummy companies with his son, who also went to prison.
U.S. District Judge Edward Rafeedie of the Central District of California, sitting by designation in the Southern District, sentenced Morales to 12 years in prison and a fine of $607,000. Morales, the judge found, took that much in bribes, enabling the late Mario Saikhon, one of the largest growers in the Imperial Valley, to evade more than $10 million in taxes.
Saikhon’s Holtville-area farm once employed 2,200 people, the San Diego Union-Tribune reported. Federal records cited by the newspaper showed the farm, which produced lettuce, carrots, broccoli, cauliflower and asparagus, grossed more than $130 million from 1985 to 1990.
Saikhon, who paid more than $22 million in back taxes, penalties, and interest after the scheme was discovered, was sentenced to more than six years in prison and fined another $1.25 million. But he was released on medical furlough after being diagnosed with lung cancer less than two months after being incarcerated, and died three months later.
When Morales, now 73, was in prison, the government dunned his $2,500 monthly pension to pay the fine. Since his release, it has continued to collect the sum of $1,506.21 monthly.
In denying Morales’ motion, filed last year, to vacate or reduce the fine, Thompson cited Rule 35(a) of the Federal Rules of Criminal Procedure. The rule allows seven days after sentencing for the correction of “arithmetic, technical, or other clear error” in the judgment.
The rule was correctly applied, the Ninth Circuit panel held Friday.
“Morales brought his motion approximately ten years after sentencing, which was long past the time for seeking relief under Rule 35(a),” Senior Judge Robert Beezer wrote for the panel.
Beezer also rejected defense contentions that the court could reduce the fine under its inherent authority to control its own procedures, or under any of three statutes—18 U.S.C. Sec. 3614(a), Sec. 3583, or Sec. 3573.
Sec. 3614(a) permits imposition of an alternative sentence when a defendant “knowingly fails to pay a delinquent fine.” Sec. 3583 permits modification of conditions of supervised release, and Sec. 3573 allows the court to defer a fine or set up a payment a schedule when “reasonable efforts to collect a fine...are not likely to be effective.”
None of those laws apply, Beezer said. Morales has not failed to pay his fine, the fine was not imposed as a condition of supervised release, and “efforts to collect the fine have been quite successful” since the money is coming out of the defendant’s pension, Beezer wrote.
As for inherent powers, the judge wrote, they do not extend so far as to allow what would amount to reconsideration of the sentence.
Senior Judge Ferdinand F. Fernandez and Judge Richard A. Paez concurred in the opinion.
The case is United States v. Morales, 02-50154.
Copyright 2003, Metropolitan News Company