933 F2d 1016 United States v. Fukushima

933 F.2d 1016

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
John Makoto FUKUSHIMA, Defendant-Appellant.

No. 90-10219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1991.
Decided May 16, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


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1

MEMORANDUM*

2

John Makoto Fukushima appeals the district court's imposition of a $25,000 fine under Sec. 5E1.2 of the United States Sentencing Guidelines ("U.S.S.G.") (fines for individual defendants) and the district court's restriction of his ability to associate with the Hell's Angels Motorcycle Club as a condition of his supervised release. We affirm.

A. Statement of Facts

3

On November 10, 1987, federal, state, and local law enforcement officers, pursuant to a valid warrant, searched the home of Fukushima, a member of the Hell's Angels. Among the items confiscated were sixteen weapons, including an unregistered Uzi and other assault weapons, $32,500 in cash, a police scanner, two bulletproof vests, and a small quantity of drugs. There was no warrant for Fukushima's arrest, and he was told that he was free to leave when he appeared at the federal marshall's office.

4

On December 22, 1989, a one count information was filed charging Fukushima with possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). On January 29, 1990, Fukushima entered a guilty plea in accordance with an agreement with the United States Attorney. On April 23, he was sentenced to sixteen months in custody followed by a three-year term of supervised release. In addition to the "Standard Conditions of Supervision," the court imposed the following "Additional Conditions of Supervised Release":

5

The defendant shall be prohibited from possessing a firearm or other dangerous weapon; he shall pay a fine in the amount of $25,000 as directed by the U.S. Probation Officer; he shall discontinue his association with the Hell's Angels Motorcycle Club during his supervised release period; and he shall be subject to search of his person, vehicle or residence by the U.S. Probation Officer at any time with or without a search warrant.

6

E.R. 65. Fukushima, who is currently serving his sentence, contends that the trial court abused its discretion by imposing the fine and restricting his right to associate with the Hell's Angels.

B. Discussion

1. The Fine

7

Fukushima argues that the district court's imposition of the $25,000 fine is inappropriate. Without objection from Fukushima, the court determined that the guidelines range for the fine extends from $3,000 to $30,000. See U.S.S.G. Sec. 5E1.2. The fine falls within the statutory limits and is therefore reviewed for an abuse of discretion. United States v. Weir, 861 F.2d 542, 545 (9th Cir.1988) (citing United States v. Koenig, 813 F.2d 1044, 1046 (9th Cir.1987)), cert. denied, 489 U.S. 1089 (1989).


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8

The district court sentenced Fukushima in accordance with the recommendation of the probation officer. The probation officer suggested that the fine should be sufficient to cover the costs of imprisonment. After evaluating Fukushima's financial status, the officer estimated Fukushima's net worth to be $49,816 and his net monthly cash flow to be $647.

9

Fukushima sought a $13,500 set-off from the fine because he had given up his claim in this amount to the cash confiscated by the government. His request was denied by an order issued after sentencing. Fukushima now argues that his fine is excessive, fails to consider all the appropriate factors, and is unreasonably burdensome.

10

Subsection D of U.S.S.G. Sec. 5E1.2 lists the factors the district court must consider when determining the amount of a fine. Fukushima alleges that the court did not follow this subsection, particularly with respect to his ability to pay and the burden on his family.

11

Fukushima concedes that the district court is not required to make written or oral findings regarding the factors which must be considered before imposing a fine. Weir, 861 F.2d at 545. In the context of the factors set out in 18 U.S.C. Sec. 3622(a), this court has said:

12

There is no abuse of discretion when the court had before it information bearing on all the relevant factors, including facts necessary to consider imposition of a substantial fine, absent a record showing the court refused to consider the[se] ... factors.

13

Id.

14

The record demonstrates that the sentencing court had before it information concerning the relevant factors. Fukushima concedes that the presentence report prepared by the probation officer discussed his financial status and his ability to pay. In recommending the $25,000 fine, the officer stated that Fukushima's financial situation was sound and could support a fine that fell any place within the guideline range. In his objection to the presentence report, his statement of sentencing errors, and his sentencing memorandum, Fukushima did not contest the officer's conclusions regarding his financial picture.

15

Guideline Sec. 5E1.2(e) states: "The amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive." If the defendant establishes either that he is unable to pay the fine or that imposition of the fine would unduly burden his dependents, the court should consider alternative sanctions. U.S.S.G. Sec. 5E1.2(f).

16

"The guidelines establish that it is the defendant's burden to prove he is unable to pay a fine." United States v. Rafferty, 911 F.2d 227, 232 (9th Cir.1990). Fukushima has not done so. The district court followed the recommendation in the presentence report, and the transcript of the sentencing hearing shows that it took Fukushima's arguments under advisement before issuing its ruling concerning the forfeiture set-off. Fukushima has not presented evidence that warrants the imposition of alternative sanctions, and we find that the district court did not abuse its discretion in imposing the $25,000 fine.

2. Freedom of Association

17

Fukushima argues that the restriction on his right to associate freely with the Hell's Angels is not reasonably related to the government's goals of supervised release and that the infringement on his First Amendment rights outweighs the benefits stemming from the disassociation requirement. A sentencing judge has broad discretion when imposing conditions of supervised release. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 262, 264 (9th Cir.1975) (en banc). Thus, the terms and conditions of supervised release are reviewed for an abuse of discretion. United States v. Clark, 918 F.2d 843, 847 (9th Cir.1990).1 This discretion is carefully reviewed where the conditions restrict fundamental rights, but such restrictions are permissible. United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988).

18

The test for evaluating conditions of supervised release that implicate constitutional rights is "whether the conditions are primarily designed to meet the ends of rehabilitation and protection of the public." Id. (citing Consuelo-Gonzalez, 521 F.2d at 265, n. 14). In applying this test, we employ a two-step process: we first "must determine whether the sentencing judge imposed the conditions for permissible purposes, and then [second] ... determine whether the conditions are reasonably related to the purposes." Terrigno, 838 F.2d at 374. The standard for determining whether a reasonable relationship exists is necessarily flexible because of uncertainty concerning how rehabilitation is accomplished. Clark, 918 F.2d at 848; Terrigno, 838 F.2d at 374.

19

Even where constitutional rights are involved, this court has upheld a wide variety of probation conditions and supervised release requirements. See, e.g., United States v. Romero, 676 F.2d 406, 407 (9th Cir.1982) ("By imposing upon appellant's probation the condition that he not associate with persons involved with drugs, the district court properly exercised its wide discretion in setting the terms and conditions of probation."); United States v. Furukawa, 596 F.2d 921, 923 (9th Cir.1979) ("[P]reventing a probationer from associating with those apparently involved in criminal activities is 'reasonably related' to the probationer's rehabilitation and the protection of the public."); Malone v. United States, 502 F.2d 554, 556 (9th Cir.1974) (district court can prevent probationer's association with lawful organizations if such association would encourage him to repeat his criminal conduct), cert. denied, 419 U.S. 1124 (1975).

20

As these cases demonstrate and Fukushima concedes, individuals subject to probation and supervised release do not retain the full panoply of constitutional rights possessed by other citizens. As this court noted in Consuelo-Gonzalez, however, the only permissible restrictions on a probationer's freedom are those that "can reasonably be said to contribute significantly both to the rehabilitation of the convicted person and to the protection of the public." Consuelo-Gonzalez, 521 F.2d at 264.

21

In light of the information presented to the district court, the disassociation condition of Fukushima's supervised release satisfies the Consuelo-Gonzalez standard. Our court has said that "[a] convicted criminal may be reasonably restricted as part of his sentence with respect to his associations in order to prevent his future criminality." Malone, 502 F.2d at 556-57. In reviewing the appellant's contention that the terms of his probation impermissibly infringed on his First Amendment rights of free association, the Malone court reasoned as follows:

22

The conditions [of probation] here involved are not intended to infer that each member of a group or organization with which the appellant is forbidden to associate will necessarily lead him into criminal activities or be a bad influence. It is the incidental association with one or more who might lead him to future criminality that the Court seeks to prevent. If the trial Judge could only prohibit active association with a group having an illegal purpose then the Court would be, in effect, restricted to the standard condition that the probationer obey the law.

23

Id. at 556. Accordingly, the legitimate possibility that Fukushima's continued association with a lawful group will result in further unlawful activity is sufficient to justify the imposed restrictions.

24

The district court had ample reason to believe that Fukushima's past association with the Hell's Angels may have contributed to his crime and that further association might yield similar results. The presentence report supports the district court's conclusions and specifically recommends that Fukushima's association with the Hell's Angels be discontinued during the period of his supervised release. The district court did not abuse its discretion in finding that disassociation may serve a rehabilitative function, and it therefore satisfied the first requirement articulated in Terrigno, 838 F.2d at 374.

25

The second Terrigno requirement is that the condition of supervised relief be reasonably related to the purposes for which it was imposed. Fukushima contends that the infringement of his First Amendment rights far outweighs the benefits afforded by the disassociation condition. We find, however, that the district court's decision to restrict Fukushima's freedom to associate is reasonably related to its purpose of encouraging appellant's rehabilitation. The district court believed Fukushima's intimate involvement with the Hell's Angels may have led to his crime, and the conditions therefore reasonably relate to the purposes for which they were imposed.

26

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

As both parties recognize, the recommended conditions of probation and supervised release are the same under the guidelines. See U.S.S.G. Sec. 5B1.4. Thus, for purposes of this discussion, all references to probation apply equally to supervised release