Metropolitan News-Enterprise


Tuesday, October 11, 2016


Page 1


Ninth U.S. Circuit Court Upholds Sentences in Deadly Fire Caused by Drug-Making


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday upheld the sentences of two men who provided funds and a rented apartment to a hash oil cooking operation that resulted in a deadly fire.

U.S. District Judge James L. Robart of the Western District of Washington sentenced Jesse D. Kaplan and Daniel James Strycharske to each serve three years in prison and to pay joint-and-several restitution of nearly $2.8 million.

The pair pled guilty to charges of endangering human life while manufacturing controlled substances, maintaining a drug-involved premises and manufacturing hash oil and marijuana. The men admitted that David Shultz II, whom they met at a marijuana festival, moved into their Bellevue, Wash. apartment and joined them in a hash oil venture.

The venture came to an end on Nov. 5, 2013, when butane flames given off during the hash oil manufacturing process ignited and exploded, injuring the three men and engulfing significant parts of the apartment complex in flames. Six victims were severely injured, and one later died of complications.

Local news reports identified the deceased victim as Nan Campbell, 87. She had been mayor of Bellevue from 1988 to 1990, the first woman ever to hold the office.

Prosecutors’ Explanation

Prosecutors said Bellevue police had gone to the apartment two weeks earlier and spoken with Kaplan and Schultz. Both men presented their medical marijuana cards, but told police they were not making hash oil.

The officer told the men that producing hash oil could result in a fire or explosion. He also said that making the oil inside the apartment “would be a violation of their rental agreement,” prosecutors said.

Prosecutors brought charges against four others in similar cases at the same time Shultz, Kaplan, and Strycharske were charged, the local press reported. Prosecutors were quoted as saying the defendants were seeking to take advantage of the relaxed atmosphere regarding marijuana after recreational use was approved by state voters the previous year.

Shultz was separately sentenced to nine years in prison, and was not a party to Friday’s decision.

Kaplan and Strycharski argued on appeal that the restitution amount was excessive because Robart used replacement values, rather than fair market values, for many of the items of personal property that were destroyed in the fire.

Panel Opinion

U.S. District Judge David Ezra of the District of Hawaii, sitting on the Ninth Circuit by designation, rejected the argument, saying the applicable statute gives district judges discretion to choose the appropriate method of valuation. In this case, he said, it was reasonable to use replacement value because of the nature of the loss.

“The district court correctly focused its attention at the restitution hearing on making the victims whole, in furtherance of the congressional purpose of the [Mandatory Victim Restitution Act],” Ezra said. “The district court found that the various pieces of property at issue were ‘very personal types of items,’ and that awarding the fair market value to purchase someone else’s used personal items would not make the victim whole.”

Ezra also rejected the defense arguments that the defendants were entitled to resentencing because they weren’t given notice, as required by the Federal Rules of Criminal Procedure, that the district judge was considering an above-guidelines sentence. The guidelines range as to both defendants was 24 months to 30 months.

Rule 32, Ezra noted, permits an above-guidelines sentence on grounds specified in the presentence report. Here, he explained, the PSRs noted that the guideline range did not contemplate that the crimes would involve “death, serious bodily injury, and property destruction.”

That language placed the defendants on notice of a possible upward departure, the jurist wrote, and no additional notice was required. The record, he added, did not support defense claims that the trial judge departed on other grounds.

The three-year terms, he went on to say, were substantively reasonable given the harm suffered by the victims.

The case is United States v. Kaplan, 15-30213.


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