Metropolitan News-Enterprise


Friday, April 18, 2014


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Judge’s Remarks About Immigrants No Basis for Reversal—Court

Ninth Circuit Panel Says Wright Was Expressing Frustration, Not Bias




A judge’s comments about immigrants who defraud the government, then plead the deprivations of their prior circumstances as grounds for leniency, do not require a new sentencing for a defendant who pled guilty to conspiring to commit healthcare fraud, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Odachyan was named in a 10-count indictment charging that he and two other Armenian immigrants conspired to defraud Medicare. Odachyan, while working as manager at Tujunga-based RL Medical Supply, allegedly used forged prescriptions to bill the government for unneeded electric wheelchairs, hospital beds and other medical equipment, much of it never provided to patients.

Odachyan agreed to plead guilty to a single conspiracy count. It was also agreed that he could appeal his sentence only if it exceeded Level 21 of the Sentencing Guidelines, and that the government could not appeal unless it fell below Level 17.

High-End Sentence

U.S. District Judge Otis D. Wright II of the Central District of California concluded that the appropriate sentencing level was 19, and the criminal history category was II, resulting in a guidelines range of 41 to 51 months. Before sentencing Odachyan to 51 months in prison, he said that the case merited a high-end sentence because it involved “an awful lot of money to an organization whose sole purpose is to provide for the medical needs of the most vulnerable in our society,” and added:

“…I am in constant wonder and amazement why it is so many people come to this country seeking a better life and then prey on this government’s institutions as their own personal piggybanks and then direct the court to look at the terrible conditions from which they came as somehow an excuse or mitigating factor.”

Odachyan argued on appeal that the judge’s comment reflected an anti-immigrant bias warranting reversal. He cited Berger v. United States, 255 U.S. 22 (1921), in which the court held that a district court judge’s comments about German-Americans were sufficient to support an affidavit of bias or prejudice under the then-applicable statute.

The judge in that case was presiding over the trial of several defendants, including German immigrants, accused of violating the Espionage Act during World War I. The judge allegedly made remarks prior to trial suggesting that “the German-Americans in this country” possessed “hearts…reeking with disloyalty.”

Constitutional Rights

Judge Richard Clifton, writing for the Ninth Circuit, noted that there was no motion to disqualify Wright. He acknowledged that judicial action motivated by racial bias would deprive a defendant of his constitutional rights to due process and equal protection, but said the context indicated that did not happen to Odachyan.

Wright, the appellate jurist explained, was responding to a sentencing memorandum that referenced conditions in Armenia when the defendant lived there, including his brother’s death, an earthquake, and food shortages that led his family to emigrate. The judge, Clifton said, was merely offering an explanation as to why he was unpersuaded by the memorandum, or by letters from others regarding the same conditions, to reduce the sentence.

Citing more recent Supreme Court opinions regarding similar remarks, Clifton wrote:

“At most, the statement reflects a ‘general frustration’ with the type of argument Odachyan made at sentencing….That is not enough ‘to overcome the presumption of honesty and integrity that we accord to the determinations of a judge.’”

Visiting District Judge Jennifer A. Dorsey of the District of Nevada concurred in the opinion, while Judge Stephen Reinhardt concurred separately.

Reinhardt agreed that there was no constitutional violation, but said Wright should not have made the comments.

“The district judge’s statement, although not rising to the level of a constitutional violation, has no place at a sentencing hearing, both because it is contrary to the requirement that a judge sentence on an individual basis and because it lends the appearance of stereotypical thinking regarding alienage or membership in a particular racial, ethnic, or religious group,” he wrote. “Judges should forgo making such statements at all times but especially when judging the conduct of individuals in the course of criminal proceedings.”

The case was argued on appeal by David E. Kenner for the defendant and Assistant U.S. Attorney Melanie Sartoris.

The case is United States v. Odachyan, 11-50253.


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