Opinion
Case No. 2:09-mj-517.
December 16, 2009
OPINION AND ORDER
Defendant Delbert L. Payne has been charged in an information with violating 18 U.S.C. § 641. He attempted to plead guilty to that information on October 30, 2009. At that proceeding, both the United States and Mr. Payne, through counsel, stated that Mr. Payne had agreed that, as part of any sentence, the Court should order Mr. Payne to make restitution in the amount of $1,601.51. Because the Court expressed some concern as to whether such an order would violate the law, the proceeding was adjourned so that the parties could brief the issue. Mr. Payne filed a brief on November 6, 2009, and the United States did so on November 13, 2009. Both parties argue that the Court would be permitted to order the requested amount of restitution based on Mr. Payne's plea of guilty to the charge set forth in the information. For the following reasons, the Court does not agree. Thus, the case will either proceed with a guilty plea to the information, with the understanding that the Court's order of restitution will be limited as set forth in this order, or the parties can re-negotiate a plea agreement which will satisfy these concerns and allow for an order of restitution in the amount the parties request.
The Court begins its analysis with the Information. Because the wording of this charging document is somewhat unusual, and also because its precise wording is central to the Court's analysis, Count One will be reproduced in full. It states:
On, about or between the 25th day of October and the 14th day of November 2005, in the Western District of Kentucky at Fort Campbell, Christian County, Kentucky, within the special maritime and territorial jurisdiction of the United States, Delbert L. Payne, defendant herein, did intentionally steal at the Lee Village Shoppette, eight (8) Nutri-Grain bars, valued at $4.80, two (2) bottles of Snapple, valued at $2.18, one (1) pack Black and Mild cigars, valued at 2.15 (sic), two (2) video rental fees, valued at $7.00, $50.00 cash from the register, and various consumable goods and merchandise, of some value, a total of some value, property of the Army and Air Force Exchange Service (AAFES), a U.S. Agency.
In violation of Title 18, United States Code, Section 641.18 U.S.C. § 641's language is also pertinent to the Court's analysis. That statute says, in relevant part, that "[w]hoever . . . steals . . . any . . . money, or thing of value of the United States or any department or agency thereof . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. . . ." It goes on to say, however, that "if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned for not more than one year, or both." Although the Information is fairly vague as to the total amount of theft it alleges (after itemizing money and property with a value of $66.13, it adds that Mr. Payne took other "various consumable goods and merchandise, of some value" and that the amount of the property taken was worth, in the aggregate, "a total of some value"), all parties agree that the Information charges only the misdemeanor version of a violation of 18 U.S.C. § 641. Thus, the offense charged, and the one to which Mr. Payne currently intends to plead guilty, is theft of government property the value of which "does not exceed the sum of $1,000."
In the abstract, there is no reason why a defendant should not be allowed to plead guilty to this offense. However, the issue in this case is whether, once the Court accepts such a guilty plea, it can impose a restitution obligation in excess of $1,000. The answer to that question is governed by 18 U.S.C. § 3663A and the case law interpreting that statute and its predecessor.
Restitution as a part of a criminal sentence is governed by 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act, which was enacted in 1996. Generally, the Act requires the Court to order a defendant convicted of certain offenses to "make restitution to the victim of the offense. . . ." 18 U.S.C. § 3663A(a)(1). Offenses against property defined in Title 18 are included in those offenses for which restitution is mandated. 18 U.S.C. § 3663A(c). The statute requires that the defendant make restitution for loss of property in an amount equal to the value of the property. 18 U.S.C. § 3663A(b). It does not, however, address the question of how the amount must be related to the offense of conviction, other than to allow for restitution to be ordered for an offense that is not a qualifying offense under subsection (c) if the guilty plea "specifically states that an offense listed under such paragraph gave rise to the plea agreement." It also permits restitution to be made to persons who are not the victims of the offense "if agreed to by the parties in a plea agreement. . . ." 18 U.S.C. § 3663A(a)(2). Because the offense charged in the Information is a qualifying property offense, and the only victim to whom restitution is to be made, the United States, is the victim of the offense, these two provisions have no application here. Consequently, other than requiring the Court to order restitution in this case, the statute is of little help in answering the precise question posed here other than through its general mandate that the amount of restitution ordered be equal to the value of the property lost.
A prior version of the restitution statute was known as the Victim and Witness Protection Act and was codified at 18 U.S.C. § 3579 et seq. In construing that statute, the United States Supreme Court, in Hughey v. United States, 495 U.S. 411, 416 (1990), held that when restitution was being ordered under the statute, the amount of restitution must be tied to "losses caused by the conduct underlying the offense of conviction." The defendant in that case had pleaded guilty to a single count of unauthorized use of one credit card. The District Court ordered him to pay restitution in an amount attributed to the use of approximately 21 credit cards, which amount greatly exceeded the loss attributable to the use of the card referred to in the count to which the defendant pleaded guilty. The Supreme Court reversed that order, concluding that it was Congress' intent that "restitution . . . be tied to the loss caused by the offense of conviction." Id. at 418. Although Hughey was construing a different statute, the courts have uniformly recognized that the enactment of the Mandatory Victims Restitution Act was not intended to change this result. See, e.g., United States v. Gordon, 480 F.3d 1205, 1211 (10th Cir. 2007) ("The MVRA, which amended the VWPA in 1996, did not change the general rule that restitution may only be ordered for losses caused by the offense of conviction").
Given that the Court must relate any order of restitution directly to "losses caused by the offense of conviction," how does that concept apply here? Certainly, the key to answering that question is deciding exactly what the offense of conviction consists of. That question takes the Court back to the Information, which, should Mr. Payne ultimately enter a guilty plea, will define what offense he has been convicted of.
First and foremost, the offense of conviction will, by all parties' agreement, be the misdemeanor version of the offense described in 18 U.S.C. § 641. By definition, that offense cannot involve a theft of government property in an amount in excess of $1,000. It would be hard to conclude that restitution in any amount greater than $1,000 would be compensating the government for losses caused by the misdemeanor offense described in the Information. The logical inconsistency between an offense which cannot involve a loss greater than $1,000, and a restitution order for losses that exceed that amount, is simply to difficult for the Court to overcome. The Court notes that in United States v. Elson, 577 F.3d 713, 723 (6th Cir. 2009), the Court of Appeals suggested that, when restitution is being ordered pursuant to a plea agreement rather than a jury verdict, "the court should look to the plea agreement, the plea colloquy, and other statements made by the parties to determine the scope of the `offense of conviction' for purposes of restitution," but that concept cannot, in the view of this Court, permit the parties to alter the fundamental nature of that offense through a plea agreement. In other words, no matter how the parties may attempt, in a plea agreement or plea colloquy, to enlarge the scope of the "offense of conviction" here, that offense remains a misdemeanor and is statutorily limited to conduct that deprived the United States of property with a value of less than $1,000.
There is a second problem as well which is created by the vague language of the Information and with its allegation of a specific time frame. In United States v. Akande, 200 F.3d 136, (3d Cir. 1999), a case cited with approval in Elson, supra, the Court of Appeals for the Third Circuit held that because "[t]he conduct underlying the offense of conviction . . . stakes out the boundaries of the restitutionary authority . . . the offense of conviction is temporally defined by the period specified in the indictment or information." In other words, even if a defendant engaged in a course of similar conduct that covered a broad length of time, if the government chooses to charge the defendant with criminal activity occurring during a lesser period of time, the offense of conviction cannot encompass conduct that occurred either before or after the time period set forth in the indictment or information. The Court noted that, especially in a case where an Information is the charging document, "[b]ecause the government `has control over the drafting' of the Information, it bears the burden of `indlud[ing] language sufficient to cover all acts for which it will seek restitution.'" Akande, 200 F.3d at 142, quoting United States v. DeSalvo, 41 F.3d 505, 514 (9th Cir. 1994).
Here, the Information covers a very specific time frame. It identifies two things Mr. Payne allegedly did in that time frame. First, he took property belonging to the United States with a value of $66.15. Second, he took other property of some unknown value. Again, because of the $1,000 limit on misdemeanor conduct, the Court cannot conclude that the total value of that other property exceeded $933.86, but the Court does not know, and the record made to date does not demonstrate, how much of the property loss for which the government seeks restitution occurred between these two dates. In other words, not only is the Court persuaded that it cannot order restitution in an amount exceeding $1,000 if the only charge to which Mr. Payne pleads guilty is Count One of the current Information, it may not be able to order restitution in an amount exceeding $66.13 if none of the additional losses occurred between October 25, 2005 and November 14, 2005, and it certainly cannot order restitution for any greater amount unless the parties agree about the extent of additional losses during that time period.
All of this may seem a waste of the parties' and the Court's time and resources in a misdemeanor case where the defendant stands ready both to plead guilty and to pay the agreed amount of restitution. However, the courts have repeatedly emphasized that the Court's authority to order restitution is limited by statute.See, e.g. United States v. Hensley, 91 F.3d 274, 276 (1st Cir. 1996) ("Federal courts possess no inherent authority to order restitution, and may do so only as explicitly empowered by statute"). If the Court were to order restitution in an amount that exceeds the Court's statutory authority to do so and, at the same time, make payment of restitution a condition of probation, and if Mr. Payne then failed to pay that restitution, the Court would be faced with deciding whether to revoke his probation and send him to jail. Certainly, at that time, the Court would want to be entirely convinced that the underlying restitution order was lawful. The same considerations would apply should the government seek a writ of garnishment based on the order of restitution. Consequently, the Court must satisfy itself that the restitution obligation proposed by the parties is something that the law allows. Because the Court is not convinced of that here, it notifies the parties that should Mr. Payne plead guilty to Count One of the Information, the Court will impose no restitution in an amount greater than the loss which the record shows occurred during the time period alleged in the Information, and in any event in an amount less than $1,000. If the parties decide to proceed through the filing of additional counts, they should be cognizant that 18 U.S.C. § 641 appears to provide that the misdemeanor version of the crime is committed only "if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000. . . ." (Emphasis supplied). Thus, the United States may be required to open a new case if it wishes to charge Mr. Payne with additional misdemeanor violations of § 641.