The focus of this Six Amendment inquiry is on the adversarial process, not the defendant's relationship with a particular lawyer. Wheat, 486 U.S. at 159 (citing United States v. Cronic, 466 U.S. 648, 657 n. 21 (1984)); United States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998);Rodgers, 755 F.2d at 540 n. 4. As the Supreme Court has explained:
The focus of this Six Amendment inquiry is on the adversarial process, not the defendant's relationship with a particular lawyer. Wheat, 486 U.S. at 159, 108 S.Ct. 1692 (citing United States v. Cronic, 466 U.S. 648, 657 n. 21, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)); United States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998); Rodgers, 755 F.2d at 540 n. 4. As the Supreme Court has explained:
The focus of this Six Amendment inquiry is on the adversarial process, not the defendant's relationship with a particular lawyer. Wheat, 486 U.S. at 159 (citing United States v. Cronic, 466 U.S. 648, 657 n. 21 (1984)); United States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998); Rodgers, 755 F.2d at 540n. 4.
¶27 Considering this history of the federal statute, a federal circuit court has concluded that Congress wished to zero in on major counterfeiting and trafficking activities without supplanting state and local regulation of less sophisticated schemes of forgery and fraud. United States v. Hughey, 147 F.3d 423, 434 (5th Cir. 1998). ¶28 In Hughey, the defendant was charged under the federal statute with use (not possession) of an unauthorized access device.
The legality of a restitution order is reviewed de novo. United States v. Lozano, 791 F.3d 535, 537 (5th Cir. 2015); United States v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998). Since Bailey objected to the award in the District Court, the restitution amount is reviewed for abuse of discretion.
Restitution is limited "to those losses within the scope of the offense", requiring "examin[ation of] both the amount of the claimed losses and the scope of the offense conduct". United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998). "[R]estitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea".
Congress subsequently amended the VWPA to provide that where a defendant pleads guilty to an offense involving a scheme, conspiracy, or pattern of criminal activity, the court may award restitution to any person directly harmed by the course of conduct. 18 U.S.C. § 3663(a)(2); United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998) (" Hughey II"). We have reconciled Hughey I and the congressional amendments by holding that where a fraudulent scheme is an element of the conviction, the court may award restitution for "actions pursuant to that scheme."
Under the Victim and Witness Protection Act, restitution may be ordered to victims of an offense. United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998); 18 U.S.C. § 3663. An order of restitution must be limited to the loss stemming from the specific conduct supporting the conviction.
However, both the United States Court of Appeals for the Fifth Circuit and the United States Court of Appeals for the Tenth Circuit had ruled that the term “access device” would not apply to a fraudulent check cashing scheme, prior to Rogers's sentencing hearing. In United States v. Hughey, 147 F.3d 423 (5th Cir.1998) the conviction of a defendant charged under 18 U.S.C. § 1029 with “trafficking or using one or more unauthorized access devices” was reversed because the defendant's conduct involved only “the creation and presentation of bad checks.” The court in Hughey noted that the plain text of 18 U.S.C. § 1029(e)(1) specifically excludes conduct involving “transfer[s] originated solely by paper instrument.”
A district court's denial of a continuance will be upheld if it is "neither arbitrary, nor unreasonable." United States v. Hughey, 147 F.3d 423, 431-432 (5th Cir. 1998). Although there is no mechanical test for deciding whether to grant or deny a continuance, the Fifth Circuit has outlined factors a court should consider, including: