United States v. Jeanne Rowzee , 550 F. App'x 452 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50261
Plaintiff - Appellee, D.C. No. 8:08-cr-00150-AG-1
v. MEMORANDUM*
JEANNE MARIE ROWZEE, AKA Jeanne
M. Rowzee,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and submitted November 6, 2013
Pasadena, California
Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.**
Jeanne Marie Rowzee appeals her conviction and the sentence imposed
following her guilty plea to one count of conspiracy (count one) and one count of
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
securities fraud (count two). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
I
Rowzee contends that the government breached the plea agreement because,
“[a]lthough the prosecutor did recommend a 70 month sentence in his sentencing
papers, he made comments at sentencing that appeared to implicitly recommend a
higher sentence.” Considering the totality of the circumstances, we hold that the
government did not breach the plea agreement when it stated that “70 months . . .
would be the minimum . . . the court should impose in a case like this,” because it
offered the statement not to argue for a higher sentence but rather in response to
Rowzee’s request for a 36-month sentence. See United States v. Moschella, 727
F.3d 888, 892 (9th Cir. 2013). This was permissible under the plea agreement.
II
Rowzee additionally argues that the district court committed Rule 11 error
because it failed to adequately inform her about the nature of the charges and failed
to establish that there was a sufficient factual basis for Rowzee’s guilty plea to the
securities fraud count. Rowzee acknowledges that the plain error standard of
review applies. Considering the totality of the circumstances and in light of her
personal characteristics, we hold that Rowzee cannot demonstrate that the district
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court committed plain error with respect to her understanding of the conspiracy
charge. As Rowzee acknowledges, the Information alleges an overt act in
furtherance of the conspiracy, and while the “nature of the offense” section of the
plea agreement omits mention of an overt act, the factual basis for the offense as
described in the plea agreement does. Although a district court that sufficiently
explains to a defendant the factual basis of charges may nonetheless err when it
does not explain the legal elements of the charges, McCarthy v. United States, 394
U.S. 459, 466-67 (1969), given Rowzee’s legal background in SEC litigation and
white collar criminal defense, as well as her acknowledgment of the truth and
accuracy of the factual basis in the plea agreement, Rowzee cannot show that the
district court plainly erred in ensuring that Rowzee understood the nature of the
conspiracy charges.
The record also demonstrates that Rowzee was adequately informed that her
offense involved the violation of an SEC regulation, and the court did not plainly
err in its colloquy. The description of the elements of the securities fraud offense
in the plea agreement, as read during the plea colloquy, expressly incorporated the
violation of the relevant SEC regulation, 17 C.F.R. § 240.10b-5, and there is no
requirement that the regulation be specifically cited. See United States v. Tarallo,
380 F.3d 1174, 1187 (9th Cir. 2004).
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Rowzee also fails to demonstrate that the district court erred in determining
that there was a factual basis for count two. In this case, the money invested by the
victims was used in a common enterprise (allegedly used to provide bridge loans to
companies) in exchange for a typical return of 25 percent to 35 percent within three
to four months. The investment opportunity was widely offered and the investors
did not exercise any control over the loans; only Rowzee and the other perpetrators
had authority to manage the investments. The undisputed facts therefore
demonstrate that the district court did not plainly err in determining under the test
set forth in SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946), that the challenged
investments were “securities” for purposes of the Securities Act, thus establishing a
factual basis for Rowzee’s guilty plea to the securities fraud count.
III
Rowzee next argues that count two of the Information is defective because it
failed to apprise her of the securities fraud charge. Even assuming the Information
is defective, however, Rowzee’s unconditional guilty plea waived any
nonjurisdictional defects contained therein, including any failure to allege an
element of a federal offense. See United States v. Cotton, 535 U.S. 625 (2002);
United States v. Velasco-Medina, 305 F.3d 839, 845-46 (9th Cir. 2002).
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IV
Rowzee next argues that the restitution order was improper because it
exceeded the amount of actual damages and was based on insufficient evidence.
At sentencing, however, the court ordered, “The victim’s recovery is limited to the
amount of their loss and the defendant’s [liability] for restitution ceases if and
when the victims receive full restitution.” The court therefore provided a
mechanism that would enable Rowzee to present more accurate evidence regarding
victims’ actual losses and thus reduce the total restitution amount, which is exactly
what defense counsel requested at sentencing. And because the court explicitly
stated that Rowzee is only liable until the victims receive the full restitution of their
actual loss, she cannot demonstrate that the restitution that will be imposed is
greater than the actual loss.
V
Rowzee finally argues that the district court erred in imposing mental health
and occupations restrictions as conditions of supervised release. Because Rowzee
did not object below to the conditions of supervised release, we review this claim
for plain error. United States v. Johnson, 626 F.3d 1085, 1088-89 (9th Cir. 2010).
Rowzee first argues that the mental health condition is vague because it does
not specify whether the treatment refers solely to outpatient treatment or includes
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inpatient care. At oral argument, the parties agreed that Rowzee is not presently a
danger to herself or others based upon her mental health. The government further
acknowledged that the supervised release condition would not permit involuntary
commitment without a judicial order after notice and an opportunity to be heard.
See United States v. Esparza, 552 F.3d 1088, 1091 n.5 (9th Cir. 2009). Based on
this reading, we conclude that the condition is not overbroad.
Rowzee also contends that the reasons for the mental health treatment
conditions are “not apparent” and unnecessary because she has a history of
voluntarily seeking help. However, the record is replete with Rowzee’s own
references to her mental health issues–including six pages of her sentencing
position that are devoted to discussion of her post-traumatic stress disorder, long-
term depression, and bipolar disorder. See United States v. Wolf Child, 699 F.3d
1082, 1090 (9th Cir. 2012) (court not required to state reasons for supervised
release conditions where “reasoning is apparent from the record”). The same
reasons support the district court’s authorizing disclosure of information to her
treatment provider and social service agencies. See United States v. Stoterau, 524
F.3d 988, 1011 (9th Cir. 2008).
Rowzee also challenges as substantively unreasonable and overbroad the
court’s order that she provide her probation officer with access to “any and all
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business records, client lists and other records” for any business she owns in whole
or in part. We conclude, however, that the challenged condition is reasonably
related to the circumstances of Rowzee’s conviction and to the goals of deterrence
and protection of the public. See 18 U.S.C. §§ 3553(a)(1), (2) and 3583(d); United
States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008).
AFFIRMED.
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