Vol. 6, No. 7 As Published in the Advance Sheets on February 15, 1999
Highlights of this Issue:
Leading Case:
Miscellaneous Issues:
U.S.S.G. and Sentencing Cases
United States v. Rostoff, 164 F.3d 63 (1st Cir. 1999) (Judge Stahl)
The issue in this case was whether a defendant can be compelled to make payments of restitution beyond the expiration of his term of probation. The defendants in this case were convicted of bank fraud in 1993 and they were ordered to make restitution payments to the FDIC in an amount not to exceed $650,000. When Judge Zobel imposed that restitution order, she told the defendants: "I'm sure that counsel will explain to the defendants that if at the end of probation there is no possibility of that being paid, then it will be remitted." U.S. v. Rostoff, 956 F.Supp. 38, 40 (D.Mass. 1997) (Rostoff I). [That decision, and a subsequent decision on a rehearing, reported at 966 F.Supp. 1275 (D.Mass. 1997) (Rostoff II) were discussed, respectively, in the April 28, 1997 and August 11, 1997 issues of Punch and Jurists.]
At the time of their sentencing, the relevant provisions of the Victim and Witness Protection Act (VWPA) provided that a court ordering restitution "may require that such defendant make restitution under this section within a specified period or in specified installments. . . . The end of such period or the last such installment shall not be later than . . . the end of the period of probation if probation is ordered." 18 U.S.C. 3663(f)(1) and (f)2)(A). (Emphasis added). The law also provided that orders of restitution are enforceable by the United States "in the same manner as a judgment in a civil action." 18 U.S.C. § 3663(h)(1)(B). Those provisions were, however, repealed in 1996, as part of an overhaul of the restitution statutes that were designed both to make restitution payments more common and to make it easier for the Government to enforce orders of restitution.
By the time the defendants had completed their terms of probation, they had only paid a small fraction of the total amount of the restitution ordered. The Government, therefore, brought an action, under the provision of the Federal Debt Collection Procedures Act, 28 U.S.C. §§ 3001 et seq. (FDCPA), to convert the original order of restitution into a civil judgment. The defendants objected, arguing that a defendant may not be compelled to make restitution payments beyond the expiration of their probationary term; and, in support of that argument, they cited three Circuit Court opinions in accord, namely U.S. v. Diamond, 969 F.2d 961 (10th Cir. 1992); U.S. v. Joseph, 914 F.2d 780 (6th Cir. 1990); and U.S. v. Bruchey, 810 F.2d 456 (4th Cir. 1987).
Judge Young, in Rostoff I and II, firmly rejected the defendants' arguments, stating that the VWPA "does not mean, and cannot logically be interpreted to mean, that a defendant's obligation to make restitution terminates after a finite period of time." (Rostoff I, id., at 43). While he acknowledged the case law from the other Circuits cited by the defendants, he simply declined to follow that interpretation. Moreover, while he acknowledged that the 1996 amendments to the VWPA did not apply to the defendants in this case because they were convicted before those amendments became effective, he nevertheless stated that those amendments were "instructive" in reaching his decision. Essentially, he concluded that Congress has given district courts "significant leverage" to pressure a defendant to disgorge assets - "not just ill-gotten assets, but any assets, however obtained"; and that the FDCPA was designed "to create a holistic, unitary, and simple approach to collecting debts due the United States, including restitutionary debts arising under the [VWPA]." (Rostoff II, id, at 1279 and 1277).
The defendants appealed from Judge Young's rulings, claiming multiple errors; but the First Circuit unanimously affirmed with sweeping language that often appears more tinged with social policy than legal precedent. It held that the fact that the defendants' terms of supervised release had expired did not raise any statutory or constitutional bars to the later collection of restitution payments. Emphasizing the enforcement language in § 3663(h), rather than the temporal limits suggested in § 3663(f), the Court said: "The fact that the last payment is due at the end of supervised release has nothing to do with the duration or expiration of the restitution order. . . . Common sense dictates that failure to pay at the time due renders the payment overdue; it does not abate the obligation entirely."
The Court also rejected the defendants' argument that the Seventh Amendment precluded the Government from obtaining a civil judgment based on a restitution order after the period of supervised release has expired. That Amendment guarantees a right to a jury trial "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars." The Court concluded that because "the nature of restitution is penal and not compensatory . . . the Seventh Amendment simply does not apply . . . . To require a jury trial to enforce restitution ordered at sentencing would have the same effect as requiring a jury trial ab initio. The original restitution order would be worthless, uncollectible without an additional jury trial. Such a requirement runs counter to [the Supreme Court's decision in Kelly v. Robinson, 479 U.S. 36 (1986)." (Id., at 71). It is a little confusing why the Court even cited the Kelly decision, because, in a footnote to its discussion of that case, the Court acknowledged that "it was clear from the context" of the Kelly decision that the Supreme Court's ruling was "intended to refer simply to the general question of compensation of victims, and not to the enforcement of restitution orders in civil actions, such as in the instant case." (Id., at 71, n. 12).
Finally, the Court addressed the defendants' challenge to the use of the FDCPA to collect an order to pay restitution to the FDIC. Citing U.S. v. Bongiorno, 106 F.3d 1027 (1st Cir. 1990), they argued that the use of the FDCPA was improper. In Bongiorno, the Court held that, although restitution is expressly included among the debts that may be collected under the FDCPA's procedures, the statute may not be used as a vehicle to collect a restitution order entered in violation of the Child Support Recovery Act (18 U.S.C. § 228). The Court reasoned that only those restitution debts owed to the United States may be collected pursuant to the FDCPA and that restitution that would ultimately be paid to a private party (such as the unsupported child in that case) did not meet this test.
Based on Bongiorno's ruling, the defendant's contended that the restitution ordered in their case was improper because it was originally owed to a private party - a bank - and not the FDIC. They also noted that the definition of "debt" under the FDCPA expressly excludes amounts "owing under the terms of a contract originally entered into only by persons other than the United States," 28 U.S.C. § 3002(3)(B). The Court categorically rejected that argument. It commented that the defendants' debt was "owing under an order of restitution, not under the terms of a typical private contract, such as a loan agreement." (Id., at 70). Further, it noted that the "victim" identified in the original restitution order was the FDIC - not the private bank. Finally, the Court also observed that if the debt is paid, the Government will receive the beneficial interest. For those reasons the Court concluded that the FDCPA was a proper collection vehicle in this case; and, it added that its holding "comports with the text of the VWPA, which allows insurers to stand in the shoes of the victim, so that the costs of crime are not borne in terms of higher premiums." (Id., at 70, n. 10).
Clearly, this decision, if followed by other Circuits, will have a marked impact on the lives of all ex-felons: no matter how much time they have served, their punishment and economic limitations will continue for 20 years after they finish supervised release!
United States v. Ellzey, 29 F.Supp.2d 505 (C.D.Ill. 1998) (Judge McCuskey)
This is a case that should be of interest to the growing numbers of CJA attorneys. As we all know, under the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, there are significant financial limits on the amounts of money that CJA counsel can earn in any one case. Under § 3006A(d)(2) the maximum amount that an attorney can earn is limited to $3,500 in all cases, even when multiple felonies are charged, unless he can convince the court that a higher fee is warranted - and that depends very much on the judge in question. While the hourly rates and practices vary enormously across the country, the highest permitted hourly rate is $75 per hour, which means that if an attorney spends more than 46 hours on an entire case, he starts to loose money. (Parenthetically, we note that the payment of CJA fees is another example of the imbalance in the scales of justice in America: if the Government prosecutors were limited to spending a total of 45 hours on investigation and prosecuting crimes in America, our prisons and jails would probably be empty!).
While § 3006A(d)(3) does specify certain procedures whereby the maximum payment of $3,500 can be increased, the mechanics of those procedures are cumbersome and time consuming. If the trial is expected to be "extended" or if the case is "unusually complex" and if the trial judge "certifies" that additional fees are "necessary to provide fair compensation for services of an unusual character or duration" and if the chief judge for that Circuit approves the additional payments, then the lawyer might be able to get his fees increased. There are still two further problems.
First of all, some Circuits have held that whatever decision is made by the district court, that decision is deemed to be non-appealable. The lawyer can't get the appellate court to review the decision, no matter how capricious or arbitrary it may be. See, e.g., United States v. Stone, 53 F.3d 141 (6th Cir. 1995). Second, when counsel does file any motion seeking an increase in fees, some courts give the Government the right to oppose the fee application; and, in those situations, the Government's objections often don't have anything to do with counsel's arguments that he needs more time to prepare an adequate defense. Thus, in United States v. Cheely, 790 F.Supp. 901 (D.Alaska 1992), the government filed objections urging the court "not to grant the defendants' counsel a 'windfall'." The court described the basis of the Government's objections as follows: "The government argued generally that the rate authorized by the [CJA] would result in a generous payment to appointed counsel which would exceed the salaries of the public officials involved in the case, such as . . . the Assistant United States Attorneys." (Id., at 903). That note of jealousy tells a great deal about justice in America!
The instant case is one of the rare reported cases in which a court agreed to permit an attorney to earn more than the maximum statutory fee of $3,500. Attorney Jon Noll represented a defendant charged in a drug conspiracy. Following a five day trial, the defendant was convicted and sentenced to life in prison. Attorney Noll then sought to collect fees of $10,041.81, which clearly exceeded the statutory maximum. Very cautiously, the Court granted the fee request, stating that "Compensation for attorneys under the Criminal Justice Act is intended to prevent economic hardship and ease counsel's financial burden in these cases, not to eliminate that burden entirely." (Id., at 507). (Emphasis added). The caution is perhaps more understandable when we look at the legal precedents the court was able to find: a total of six cases - none more recent that 1998! (See, U.S. v. Tutino, 419 F.Supp. 246 (S.D.N.Y. 1976); U.S. v. Bailey, 581 F.2d 984 (D.C.Cir. 1978);U.S. v. Johnson, 549 F.Supp. 78 (D.D.C. 1982); U.S. v. Kilroy, 563 F.Supp. 304 (E.D.Wisc. 1983); U.S. v. Carnevale, 624 F.Supp. 381 (D.R.I. 1985); and U.S. v. ex rel Kubat v. Thieret, 690 F.Supp. 725 IN.D.Ill. 1988)).
In this case, the Court found that Attorney Noll's services were both "extended and complex" and it noted that the attorney was a "well respected attorney who has practiced for many years. Aware that his client faced overwhelming evidence and a possible life sentence, he drew on that experience and defended Ellzey superbly."
Gavis
v. Crabtree, 28 F.Supp.2d 1264 (D.Or. 1998) (Judge Haggerty)
Hicks
v. Brooks, 28 F.Supp.2d 1268 (D.Colo. 1998) (Judge Daniel)
It is hard to find a more vigilant protagonist of prisoners' rights in America than Stephen R. Sady, the incomparable and indefatigable Federal Public Defender from Portland, Oregon. For years now, his office has been battling some of the more obdurate and self-interested policies of the Bureau of Prisons (BOP) which seek to convert convictions for non-violent offenses into violent ones for the purpose of denying prisoners' eligibility in the drug treatment programs that were authorized by Congress in the Violent Crime Control and Law Enforcement Act of 1994.
Under 18 U.S.C. § 3621(e)(2), a prisoner who has been convicted of a "nonviolent offense" is eligible for a sentence reduction of up to one year if he or she successfully completes a 500 hour drug treatment program. The statute, however, does not define "nonviolent offense" - and that omission left the BOP with a huge opening. It enabled the BOP to exhibit its repugnance for any program that might interfere with its self- appointed role of making sure that every prisoner serves the maximum time possible. (It is also worth noting that the BOP thrives on constantly increasing prison population levels because such growth insures the BOP's enviable role as one of the few Governmental agencies that consistently qualifies for larger Congressional budgets - in a era when most agencies' budgets are being cut back.)
To thwart the implementation of any broad-based sentence reduction program, the BOP initially adopted a regulation, 28 C.F.R. § 550.58, which disqualified from consideration under § 3621(e)(2)(B) prisoners whose current offense was determined to be a "crime of violence" - and it tied that definition to the language in 18 U.S.C. § 924(c)(3) which defines a crime of violence as "an offense that is a felony and [which] has as an element the use, attempted use, or threatened use of physical force." The BOP also adopted Program Statement 5162.02 for use by its staff in determining what constitutes a "crime of violence." Using the approach set forth in Program Statement 5162.02, the BOP decreed that it would not consider an offense "nonviolent" if, at sentencing, the offense level of the defendant's crime was increased due to possession of a firearm.
Court after court, many at the urging of Federal Defender Sady, held that the BOP's interpretation and implementation of § 3621(e)(2)(B) was improper because it ran afoul of the statute's focus on the offense of conviction by basing eligibility determinations on sentencing factors. As one court stated: "By ignoring the offense of conviction and looking only to sentencing factors, the BOP had attempted to transmogrify a ‘nonviolent offense' into a ‘crime of violence'." Roussos v. Menifee, 122 F.3d 159, 163 (3rd Cir. 1997).
Time and again, the BOP stubbornly - but artfully - attempted to revise 28 C.F.R. 550.58 and the corresponding Program Statements to comply with the courts' directives; but each time its repugnance at granting sentencing relief to convicted felons was evident from its half-hearted efforts. The latest of those revisions (28 C.F.R. § 550.58(a)(1)(vi)B)) provides that a prisoner is not eligible for any early release if his or her offense "involved the carrying, possession, or use of a firearm." As Judge Daniel observed in the Hicks case:
"In effect, the BOP has eliminated the definition of crime of violence from the 1997 revised regulation and incorporated into the revised regulation the language of the sentence enhancement for possession of a firearm, language that previously was in Program Statement 5162.02. By so doing, the BOP again has accomplished precisely what [the courts have] said it may not, i.e., exclude categorically from consideration for early release upon completion of a drug treatment program those inmates convicted of a nonviolent offense whose sentence was enhanced for possession of a weapon and, once again, convert a conviction for a nonviolent offense into a violent one by considering the sentence enhancement." (Id., at 1272-73).
Once again, the courts in both of these cases held that the BOP's latest attempt to reverse judicial precedent was invalid. "[T]he BOP's new rule violates well-established principles of stare decisis and administrative law that prohibits agency rules that conflict with judicial interpretation of the relevant statute." (Gavis, id., at 1267).
United
States v. Dorsey, Docket No. 98-35250 (3rd Cir. 1/29/99) (Judge Caldwell)
Rios
v. Wiley, 29 F.Supp.2d 232 (M.D.Pa. 1998) (Judge Caldwell)
Both of these cases deal with a highly technical issue: who has the ultimate authority to determine and award credits for time served before a defendant's Federal sentencing. The issue is important because there are often long delays between a defendant's conviction and the date of his Federal sentencing. Thus, in the Rios case, the defendant spent 22 months in Federal custody on a writ of habeas corpus ad prosequendum issued to New York State authorities while he cooperated with the Government in other investigations; and the BOP refused to give him credit for those 22 months since he had not yet been sentenced for his Federal crimes. In Dorsey, the defendant was prosecuted by both State and Federal authorities for the same gun crime. Although he was indicted by the Federal authorities on August 12, 1996, he was not sentenced on that crime until May 12, 1998 - by which time he had already spent 13 months in State custody. Once again the BOP refused to give him credit for those 13 months.
The resolution of the sentencing credit issues raised is complicated because of ambiguities and conflicts in the applicable sentencing provisions and because of a strained reading of one of those statutes by the Supreme Court. (For more on that topic, see the Quote of the Week, below).
The principle statute, 18 U.S.C. § 3585(b), provides that a defendant "shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence."
Although there is nothing in that statute that specifies who has the authority to determine the appropriate sentencing credit, the Supreme Court ruled, in U.S. v. Wilson, 503 U.S. 329 (1992), that under 18 U.S.C. § 3585(b) only the Attorney General (by way of delegation to the BOP) has the authority to award credit for time served before federal sentencing. The statute derived from an earlier law, 18 U.S.C. § 3586, which was totally rewritten (and recodified as § 3585(b)) in 1987 as part of the Sentencing Reform Act. One of the revisions was to eliminate the Attorney General as the person responsible for making the determination of sentencing credits, thereby creating an ambiguity as to who has the authority to grant such credits. In Wilson, Justice Thomas, in one of his typical results-oriented decisions, reasoned that it was "likely" that the former reference to the Attorney General "was simply lost in the shuffle" and he concluded "It is not lightly to be assumed that Congress intended to depart from a long established policy."
In response to Wilson, the BOP concluded that the earliest a Federal sentence can commence is the date of sentencing. (See The Bureau of Prisons' Sentence Computation Manual, at 1-13, Program Statement 5880.28). Thus, it categorically states that: "In no case can a federal sentence of imprisonment commence earlier than the date on which it is imposed."
A second statutory provision at issue in both of these cases was Application Note 2 to U.S.S.G. § 5G1.3(b), which directs a district court to adjust a sentence downward to reflect time already served on a related charge if that time will not be credited to the Federal sentence by the BOP. Despite assertions by the Government that the Application Note is invalid, the Third Circuit, in Dorsey, rejected that claim. It concluded that if there is a conflict between the two provisions, it is between the BOP's authority to grant credit to pre-sentence detention and the sentencing court's authority to impose a concurrent sentence. From that standpoint, the "real issue" is whether the sentencing court has authority to impose a "truly concurrent" sentence - one that is not frustrated by the "happenstance" of the scheduling of sentencing dates in State and Federal Courts. It continued that if the court lacked authority to give credit for any pre-sentence incarceration, the concurrent sentencing principles of § 3584 would be frustrated.
Judge Caldwell was more blunt in Rios. He concluded that the Government should be "estopped" from refusing to credit the defendant from the time he spent cooperating with the Government in other investigations; and he listed a number of precedents which had approved the granting of a "double credit" to insure that the Federal sentence "most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time." (Id., at 235).
United States v. Vaziri, 164 F.3d 556 (10th Cir. 1999) (Judge Anderson)
This is one of those cases that shows the wondrous word games of criminal justice. One of the issues in this case was whether two of the defendants "possessed" a gun during a drug conspiracy. If they did, the courts are authorized to impose a two-level "gun bump" enhancement under the provisions of U.S.S.G. § 2D1.1(b)(1). As we will see, however, "possession" doesn't really mean "possession" - and the concept of "innocent until proven guilty" sometimes means that the defendants must prove their innocence!
The defendants in question were arrested and convicted for conspiracy to distribute illegal drugs. They were not in possession of any guns, but two rifles were found in the home of one of those defendants. She argued that the rifles were not connected with the conspiracy, and that even if they were, she had no knowledge of such a connection. She also claimed that at most the evidence showed that she was merely storing the guns. The Court agreed that both defendants "presented convincing evidence that neither ever used or owned guns." (Id., at 568). Nevertheless, the Court held "that does not establish a lack of connection with the conspiracy."
The Court continued: " ‘The [enhancement for weapon possession] should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.' U.S.S.G. § 2D1.1, comment., (n.3). The government bears the initial burden of proving possession by a preponderance of the evidence, and possession may be satisfied by showing mere proximity to the offense. The enhancement is then appropriate unless the defendant proves the exception-that it is clearly improbable the weapon was connected with the offense." (Id., at 568) (Emphasis added).
Thus the Court concluded that the defendants' "convincing evidence" that neither ever used or owned guns "even if credited, . . .is not enough to meet the clearly improbable standard, because no one established that [a third coconspirator defendant] had not likely used the guns in connection with the conspiracy." (Id.) (Emphasis added.) Then again, we should know by now that one of the guiding principles of criminal justice in America is to keep guns away from the hands of the populace.
QUOTE OF THE WEEK - The hodgepodge of conflicting, contradictory and imprecise Federal criminal statutes.
"Criminal statutes are enacted at different times, in different moral and penological climates, and in response to the pressures of different groups in the community. . . . ‘Present statutory criminal law on the Federal level is often a hodgepodge of conflicting, contradictory, and imprecise laws with little relevance to each other or to the state of the criminal law as a whole.' . . . It has never been considered a feasible judicial undertaking to rationalize, to codify--realistically, to rewrite--the federal criminal code in order to make it the product of a single mind, or of a single overarching conception of rational punishment, urgent as this task may well be . . . The 10,000 separate federal criminal prohibitions cannot be made consistent by a process of case-by-case decision, the only process available to the courts to use." Judge Posner in U.S. v. Rose, 881 F.2d 386, 388-89 (7th Cir. 1989) (Internal citations omitted).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter:
This week: 32 Year to
date: 250
Cases in the Federal Supplement:
This week: 53 Year to
date: 186
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