Opinion
s100 Cr. 320 (JGK)
June 29, 2001
OPINION and ORDER
Petitioner Joseph Foti ("Foti") moves pursuant to the All Writs Act, 28 U.S.C. § 1651, or in the alternative pursuant to 28 U.s.c. § 2255 to vacate, set aside, or correct a sentence imposed pursuant to his guilty plea for conspiracy to launder money. Foti requests that the Court strike the order of restitution in the amount of $900,000 contained in the Judgment because the final order of restitution was not entered within 90 days of the sentencing as required by 18 U.S.C. § 3664(d)(5).
I.
On December 19, 2000, the petitioner pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). (PreSentence Report ("PSR"), ¶¶ 3-5.) On January 31, 2001, the probation officer sent the completed PSR to the parties. The PSR recommended that the petitioner make restitution in the total amount of $900,000 and that $616,223.30 of that amount should be paid to the Bank of New York. (PSR at 28.)
At a sentencing hearing held on February 9, 2001, the Court raised the issue that, although the PSR stated that the amount of restitution was $900,000, the only victim specified was the Bank of New York in the amount of $616,223.30. (Transcript dated February 9, 2001 ("Sent. Tr."), at 3.) The petitioner's counsel initially took the position that the Court should sentence the petitioner on the basis of the information provided and impose restitution in the amount of $616,223.30. (Sent. Tr. at 4— 5.) The petitioner's counsel did not dispute that the amount of restitution was $900,000, but rather argued that, other than the specific amount of $616,223.30 to the Bank of New York, there was no indication of the other victims and the amounts to be paid to them. (Sent. Tr. at 5-6.) The petitioner's counsel suggested that the Court impose the $616,223.30 at that time and amend the order of restitution should additional information come to light. (Sent. Tr. at 6.)
The Court imposed a sentence of 48 months imprisonment, followed by supervised release for a term of three years. (Sent. Tr. at 29.) The Court, pursuant to 18 U.S.C. § 3664(d)(5), set the order of restitution at $900,000, subject to the Government providing a list of victims within 30 days, by March 9, 2001. (Sent. Tr. at 28.) The petitioner was given until March 19, 2001 to object to the list of victims. (Sent. Tr. at 28; Judgment at 3— 4.)
The Government failed to provide the petitioner with a list of victims. The Government alleges that after the February 9, 2001 sentencing hearing it directed the responsible agent from the Federal Bureau of Investigation ("FBI") to provide the Probation Office with a complete list of victims. (Letter of David M. Rody, dated May 30, 2001 ("Rody Ltr."), at 2.) The Government asserts that at some time subsequent to the petitioner's sentencing and prior to March 19, 2001, the FBI agent did provide information regarding the complete list of restitution victims to the Probation Office with respect to the sentencing of codefendant Guy Foti. (Rody Ltr. at 2.) That information was included in the final PSR of Guy Foti, dated March 19, 2001, which was prepared by a different probation officer than the probation officer who prepared the petitioner's PSR. (Rody Ltr. at 2.) The Government alleges that, due to a misunderstanding or miscommunication among the Government, the FBI agent, and the Probation Office, the information regarding the complete list of victims was not provided to the probation officer who prepared the petitioner's PSR and was not provided to the petitioner. (Rody Ltr. at 2.)
On May 16, 2001, the petitioner submitted this application to strike the order of restitution in the Judgment. (Letter from Richard D. Willstatter, dated May 16, 2001). The petitioner makes this application pursuant to the All Writs Act, 28 U.S.C. § 1651, or in the alternative pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence.
II.
The All Writs Act provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). However, as the Supreme Court has instructed, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."Carlisle v. United States, 517 U.S. 416, 429 (1996) (quoting Pennsylvania Bureau of Corrections v. United States Marshals Service, 474 U.S. 34, 43 (1985)). A writ of error coram nobis is available under the All Writs Act as "a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue direct review or collateral relief by means of a writ of habeas corpus." Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). The Supreme Court noted in Carlisle that, "after enactment of the Federal Rules of Criminal Procedure, it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." See id. (alteration in original) (citation omitted).
A writ under the All Writs Act is not available where, as in this case, an incarcerated petitioner can file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. See Fiqueroa v. United States, No. 00 Civ. 5979, 92 Cr. 101, 2001 WL 300743, at *2 (S.D.N.Y. Mar. 27, 2001); Rivera v. United States, Nos. 98 Civ. 5377, 98 Civ. 6397, 1999 WL 587792, at *4 (S.D.N.Y. Aug. 5, 1999); United States v. Schifano, 748 F. Supp. 172, 174 (S.D.N.Y. 1990). The Government has not argued that the Court lacks the statutory power to correct the sentence. Moreover, in moving in the alternative, the petitioners recognizes that he has available to him the remedy provided in Section 2255 to correct his sentence. Thus, the Court will construe the petition as a motion brought pursuant to Section 2255 rather than a petition brought under 28 U.S.C. § 1651.
Because the petitioner, represented by counsel, has specifically moved in the alternative pursuant to 28 U.S.C. § 2255, the petitioner has acquiesced to having the motion treated as a Section 2255 motion with knowledge of the potential adverse consequences. See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998)
III.
The petitioner argues that the order of restitution in question must be stricken because it was not issued within 90 days after his sentence was imposed as required by 18 U.S.C. § 3664(d)(5). The petitioner argues that the Government's failure to provide a timely list of victims renders the entire order of restitution invalid. The Government submits that the Court should enter an order of restitution for the petitioner reflecting the amounts and victims as detailed on the PSR for Guy Foti. (PSR of Guy Foti, attached to Rody Ltr.)
18 U.S.C. § 3664(d)(5) provides, in pertiment part: If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. . . . Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.18 U.S.C. § 3664(d)(5). Section 3664(d)(5) contemplates the entry of the order of restitution within the 90-day period provided. See United States v. Stevens, 211 F.3d 1, 4 (2d Cir. 2000). Thus, the sentencing court is required to resolve the restitution question — including any objections a defendant may have — within 90 days of the sentencing hearing." United States v. Vandebera, 201 F.2d 805, 813 (6th Cir. 2000). "[T]he 90-day limit on the entry of restitution order is more consistent with Congress's concerns about preventing the dissipation of the defendant's assets, than with protecting a defendant from a drawn-out sentencing process." Stevens, 211 F.3d at 4 n. 2.
In this case, the Judgment provided for restitution in the amount of $900,000. However, because the Government did not timely provide the defendant a list of victims as required by the Judgment, the Court did not set forth the victims to be compensated by restitution within 90 days after sentencing. Although the petitioner did not dispute that the amount of restitution was $900,000, there was no final determination of each victim's loss as contemplated in Section 3664(d)(5). The petitioner, however, was aware of the $616,223.30 owed to the Bank of New York prior to sentencing and did not object at sentencing to that victim and that amount. (Sent. Tr. at 5-6.) In fact, the petitioner's counsel specifically requested that the Court impose $616,223.30 in restitution at the time of sentencing (Sent. Tr. at 5-6) and the order of restitution plainly included the $616,223.30 owed to the Bank of New York. Thus, the petitioner was made aware of the Bank of New York's status as a victim and the amount of its loss within the 90-day time period set forth in the statute. Therefore, the Court will correct the petitioner's sentence and the petition under 28 U.S.C. § 2255 is granted to the extent that the $900,000 order of restitution is reduced to $616,223.30, the amount owed to the Bank of New York.
The Government argues that, although the petitioner did not cause the delay in providing a list of victims in this case, it is relevant that the petitioner's counsel knew that the Government had failed to provide him with specific information on victims within the time so ordered by the Court and yet declined to bring this oversight to the attention of the Government or the Court within the time when the oversight could have been corrected. In Stevens, the Court of Appeals for the Second Circuit held that the 90-day time period in Section 3664(d)(5) may be tolled by the defendant's own purposeful misconduct." Stevens, 211 F.3d at 5. Whether a defendant has engaged in such misconduct is a question of fact for the sentencing court. See id. In this case, however, as the Government concedes, the petitioner did not cause a delay by failing to provide information relevant to the issue of restitution, and the failure of the petitioner's counsel to inform the Government or the Court of the Government's own oversight does not rise to the level of purposeful misconduct contemplated in Stevens.
The Government also submits that the Court should deny the petition in full because the specific information on victims and amounts requested by the Court was provided to the Probation Office well before the 90-day time period and the Probation Office is an arm of the Court. The Government further argues that any error was harmless. This argument is without merit. The fact that a different probation officer from the probation officer who was responsible for the petitioner's PSR was aware of the proper list of victims and amounts is irrelevant for purposes of compliance with Section 3664(d)(5). The defendant was not provided with the names of the victims and the amount of restitution to those victims within the time necessary for the defendant to raise timely objections. The determination of the victims and amounts beyond the $616,223.30 owed to the Bank of New York was not final within 90 days after sentencing and an amount beyond that specified for the Bank of New York may not be assessed under Section 3664(d)(5).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is granted to the extent that the order of restitution contained in the Judgment and Commitment Order is corrected and reduced to $616,223.30 which is payable to the Bank of New York. The petition is otherwise denied.SO ORDERED.