Opinion
Case No. 1:03-CR-119.
August 24, 2006
ORDER
On May 9, 2006, attorney John A. Garretson of the law firm Garretson Holcomb, LLP, sent a letter to the Court as the attorney representing Friends of John Boehner, the victim to whom the Defendant was ordered to pay restitution. Attorney Garretson seeks to have the restitution payments made to the Federal Crime Victims Fund. The Court received a letter from the Office of the United States Attorney for the Southern District of Ohio, stating there were no objections on its part to an assignment of restitution to the Fund. Finally, the Court received a letter from counsel for the Defendant, stating that he objects to such an assignment.
The Court ordered restitution in the amount of $617,562.88 (Doc. No. 10).
The victim is entitled to restitution pursuant to the Mandatory Victim Restitution Act of 1996, 18 U.S.C. § 3663A. et seq. Pursuant to § 3664(g)(2), this Court may authorize the assignment of restitution to the Crime Victims Fund. United States v. Johnson, 378 F.3d 230, 244 (2nd Cir. 2004). On July 31, 2006, the Court issued an order (Doc. No. 13) directing the Defendant to file a pleading demonstrating his standing to object to the request to assign restitution to the Crime Victims Funds. As the Court stated in that order, § 3664(g)(2) quite clearly gives the victim of a defendant's crime the right to assign his restitution payments to the Fund without affecting the defendant's obligation to continue making payments. Defendant filed a timely response (Doc. No. 14) to the Court's order.
This section provides:
A victim may at any time assign the victim's interest in restitution payments to the Crime Victims Fund in the Treasury without in any way impairing the obligation of the defendant to make such payments.
In his response, Defendant relies on United States v. Pawlinski, 374 F.3d 536 (7th Cir. 2004), to establish his standing to object to the proposed assignment of restitution. Defendant's reliance on Pawlinski is misplaced. Pawlinski is similar to this case in that it too involved a defendant who embezzled money from a political campaign fund. Id. at 537. At this point, however, the two cases begin to diverge. Pawlinski stole about $40,000 from his own campaign fund and the court ordered him to deposit the restitution he owed, about $39,000, with the court's registry. The court then notified contributors to Pawlinski's campaign that they might be entitled to reimbursement, but there were only about $1,900 in claims filed. At sentencing, the issue arose about what to do with the funds still on deposit with the court. Pawlinksi suggested that the funds be returned to his campaign fund where it would be distributed according to Wisconsin law. The government had no opinion whether the money should be returned to the campaign fund or given to the Federal Crime Victims Fund. The court ordered that the money be paid into the Crime Victims Fund. Id. at 538. Pawlinski filed a timely appeal from this order and the question of his standing to object to the payment of the money to the Crime Victims Fund arose. The Court determined that Pawlinski had a financial interest in returning the money to the campaign fund because Wisconsin law required the money to be returned to the contributors. Id. The Court also believed that Pawlinski had standing because Wisconsin law requires candidates to pay their campaign debts before a campaign fund is terminated and it was uncertain whether the debts of the fund became personal to Pawlinski. Id.
In contrast to Pawlinski, however, the Court sees no such personal financial interest of the Defendant in this case in the distribution of restitution to the Crime Victims Funds. The victim in this case, Friends of John Boehner, was not the Defendant's personal campaign fund. Rather, he was an employee of the campaign committee. Presumably, therefore, the Defendant would not be personally liable for the campaign's debts even if Ohio law were the same as Wisconsin law. Defendant's apparent motivation for objecting to the intended assignment of restitution in this case is to determine whether the Friends of Boehner has outstanding campaign debts which need to be retired or whether the distribution of excess contributions (assuming restitution would be considered an excess contribution) otherwise complies with Ohio campaign finance law. In this regard, however, Defendant has no greater interest in what happens to the restitution payments than any other citizen of the state of Ohio. Defendant's desire to ensure that Friends of Boehner is in compliance with Ohio law, absent a threat of concrete personal injury to himself (which he does not allege), is the type of generalized grievance which the Supreme Court has repeatedly held to be insufficient to confer standing on a party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) ("We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.").
The Court, therefore, concludes that the Defendant does not have standing to challenge the victim's assignment of restitution to the Federal Crime Victims Fund. Accordingly, it is hereby ORDERED that Restitution payments made by Defendant be paid in the following manner: $617,562.88 to the Federal Crime Victims Fund. The Deputy Clerk shall ensure that a copy of this Order is transmitted to counsel of record, the United States Probation Office and Attorney John A. Garreston.