Igbinovia v. State

895 P.2d 1304, 111 Nev. 699, 1995 Nev. LEXIS 74

• Court: Nevada Supreme Court
• Decided: May 25, 1995
• Docket: 24071, 24312 and 24202
• Status: Published

Opinions

OPINION

By the Court,

Shearing, J.:

These consolidated appeals require us to decide whether district court judges possess the statutory authority to order a person convicted of violating the narcotics laws of this state to reimburse the arresting authorities for the outlay of “buy money,” the funds expended by police departments to obtain conclusive evidence of an offender’s guilt, either by imposing the requirement as part of the sentence or as a condition of probation.

We hold that the restitution portion of the sentencing statute does not accord the authority to order restitution of “buy money,” but that the broader language of the statute allowing for restitution as a condition of probation does accord such authority. We therefore vacate the restitution portion of the sentence imposed upon appellant Enoma Uyg Igbinovia (Igbinovia) and let stand the restitution probation conditions imposed upon appellants Leroy Roosevelt Mack (Mack) and Michael Vern Menzelli, Jr. (Menzelli).

On July 18, 1992, an undercover narcotics officer of the Las Vegas Metropolitan Police Department (Metro) purchased one-eighth of an ounce of marijuana from Igbinovia for $25. The next day Igbinovia sold the same officer $40 worth of marijuana, and on September 3, 1992, Igbinovia and a co-defendant sold one-quarter of an ounce of cocaine to an undercover Metro officer for $350. Igbinovia was charged with three counts of sale of a controlled substance, and one count of trafficking a controlled substance.

Pursuant to a plea bargain, Igbinovia pleaded guilty to one count of possession of a controlled substance with intent to sell. Igbinovia was thereafter convicted on the single count to which he pleaded guilty. The Department of Parole and Probation, in a pre-sentence report, recommended that Igbinovia be “held accountable” for the $65 spent to purchase the marijuana and one-half of the $350 spent to purchase the cocaine. The department stated that, “Therefore, total restitution owed by the defendant would be $240.” The district court judge sentenced Igbinovia to a prison term, and required, as part of his sentence, that he pay $240 in restitution to Metro.

On March 9, 1992, appellant Mack sold 5.3 grams of cocaine to an undercover officer of the North Las Vegas Police Department (the department). He was charged by information with trafficking a controlled substance. Mack pleaded guilty to the lesser charge of possession of a controlled substance with intent to sell, and was sentenced to three years in prison. The judge suspended the sentence in its entirety and placed Mack on probation “for an indeterminate period of time not to exceed five (5) years,” with special conditions, including the requirement that Mack pay $400 in restitution to the department.

On August 30, 1990, detective Jimmy Vaccaro (Vaccaro) went to appellant Menzelli’s home, where Vaccaro and Menzelli waited until a third man, Ricardo, arrived. Ricardo produced cocaine from his pocket and handed it to Menzelli, whereupon Menzelli turned it over to Vaccaro. Vaccaro asked Ricardo how much he wanted for the cocaine, and Ricardo answered, “Whatever you and Mike [Menzelli] have worked out.” Vaccaro then paid $340 to Menzelli, who handed the money to Ricardo. Vaccaro left the premises without arresting either man. Menzelli was arrested later and charged with trafficking a controlled substance.

Menzelli pleaded guilty to a reduced charge of possession of a controlled substance, and was sentenced to three years in prison. The district court judge suspended the sentence in its entirety and placed Menzelli on probation “for an indeterminate period not to exceed four (4) years.” As one of several special conditions of probation, Menzelli was ordered to pay $170 restitution during the first year of probation, representing one-half of the “buy money” spent to purchase the cocaine. Each of the appellants now contest the restitution orders.

We first address appellant Igbinovia’s claim — that the district judge who sentenced him lacked statutory authority to order him, as a part of his sentence, to pay restitution to Metro for the money Metro expended in buying marijuana and cocaine from him. The statutory basis in Nevada for ordering restitution as part of a sentence is NRS 176.033, which provides, in relevant part:

Sentence of imprisonment required or permitted by statute: Definite period; restitution; modification of sentence.

1. If a sentence of imprisonment is required or permitted by statute, the court shall:

(a) Sentence the defendant to imprisonment for a definite period of time . . . ; and

(b) If restitution is appropriate, set an amount of restitution/or each victim of the offense and for expenses related to extradition ....

(Emphasis added.) The precise question, then, is whether Metro is a “victim” within the meaning of NRS 176.033.

The legislature did not define “victim” in NRS. 176.033 or elsewhere in the statutory scheme within which the provision falls. The legislature has defined “victim” in a wholly separate provision of the Nevada Revised Statutes. See NRS 213.005. That statute provides, in relevant part:

As used in NRS 213.010 to 213.100 [a subsection of the “Pardons and Paroles” chapter of the NRS], inclusive, unless the context otherwise requires:

2. “Victim” includes:

(a) A person against whom a crime has been committed;

(b) A person who has been injured or killed as a direct result of the commission of a crime; or

(c) The surviving spouse, parents or children of such a person.

In enacting NRS 176.033, the legislature did not cross-reference the definition of “victim” found in NRS 213.005, although it could have;¹ as a result, the legislature did not incorporate the definition into the sentencing statute. We are therefore left to interpret the word “victim” within the policy of the sentencing statute and to discern whether the legislature envisioned that police departments which expend money to obtain evidence are “victims” within the meaning of the sentencing statute.

We find it useful to look to other state court decisions that have directly considered this issue. The overwhelming number of these courts have determined that police departments are not “victims” within the meaning of sentencing statutes allowing restitution to “victims of the offense” for which a defendant has been convicted. See, e.g., People v. Chaney, 544 N.E.2d 90, 91 (Ill. App. Ct. 1989); People v. Evans, 461 N.E.2d 634, 639 (Ill. App. Ct. 1984); People v. Woods, 576 N.Y.S.2d 611, 612 (App. Div. 1991) (superseded by statute specifically allowing for restitution of “buy money” to law enforcement agencies); People v. Rowe, 544 N.Y.S.2d 97, 98-99 (App. Div. 1989) (same); State v. Evans, 512 N.W.2d 259, 261 (Wis. Ct. App. 1994); see also U.S. v. Meacham, Nos. 93-1692, 93-1768, 1994 WL 259208 (6th Cir. June 15, 1994).

In Chaney, 544 N.E.2d at 91, the court noted that “where public money is expended in pursuit of solving crimes, the expenditure is part of the investigating agency’s normal operating costs and the agency is not considered a ‘victim’ for purposes of restitution.” In Evans (Wisconsin), 512 N.W.2d at 261, the Wisconsin Court of Appeals found that the state was not a “victim” under its sentencing statute and it distinguished and left intact its prior holding that restitution of “buy money” is only appropriate as a condition of probation unless and until the legislature specifically directs otherwise. The same court had earlier stated that “[f]or reasons we believe too obvious to recite, we disagree with [defendant] that sale of narcotics is a ‘victimless crime.’ Society may be no less a victim of this type of criminal conduct than an individual who may be more directly harmed.” State v. Connelly, 421 N.W.2d 859, 861 (Wis. Ct. App. 1988) (emphasis added). Although the court acknowledged its earlier statement, it nevertheless held that the “victim” in an arranged drug buy is not the police department. 512 N.W. at 260-61.

In Evans (Illinois), 461 N.E.2d at 639, the court held that the government will not be considered a “victim” to the extent that public monies — which represent a normal operating cost — are expended to collect evidence of crime. The court specifically stated:

While certainly we would be remiss were we to hold that unlawful delivery is a victimless crime, we would be blinking reality were we not to acknowledge that many, if not most, offenders are brought to justice through the efforts of undercover agents making buys with public monies. We will not, however, strain the commonly accepted understanding of the word “victim” so as to include the public drug enforcement agency ... in the case before us. Where public monies are expended in the pursuit of solving crimes, the expenditure is part of the investigating agency’s normal operating costs. The governmental entity conducting an investigation is not therefore considered a “victim” to the extent that public monies are so expended.

Id. (citing Evans v. Garrison, 657 F.2d 64 (4th Cir. 1981) (wherein appellate court vacated restitution requirement imposed by trial judge that, if unpaid, limited defendant’s parole eligibility)) -

In Meacham, 1994 WL 259208 at *3, the court held that restitution may not be awarded as part of a sentence under the federal Victim and Witness Protection Act (VWPA) because the government was not a “victim” within the meaning of the VWPA. The court emphasized that when restitution is ordered as part of a sentence, its aim is “to protect victims, not to safeguard the government’s financial interest in funds used as bait to apprehend offenders.” Id. The court also pointed out that “investigative costs are not losses, but voluntary expenditures by the government for the procurement of evidence” which may not form the basis for a restitution award because the costs are “not a direct loss resulting from the defendant’s illegal conduct.” Id.

Finally, in U.S. v. Gibbens, No. 93-2203, 1994 WL 220364 *1, *7 (1st Cir. June 1, 1994), the court held that the government was not a “victim” for purposes of the VWPA and could not be awarded restitution thereunder. In Gibbens the Department of Agriculture had sold food stamps in an undercover operation at a deep discount to the defendant, and as part of the defendant’s sentence the federal district court judge ordered restitution to the government for its loss, which it computed as the difference between the face value paid out when the stamps were tendered by retailers and the price for which the undercover agents had sold the stamps. Id. at *2. In vacating that portion of the sentence, the appellate court stated:

It defies common usage to envision an entity that planned and provoked a crime as a victim in the same sense that a passive sufferer of harm is a victim, notwithstanding that the entity may have experienced loss.

Id. at *6. The court again emphasized that the word “victim” has common notions of passivity when it stated that “[a] victim is commonly considered to be a passive sufferer of harm, that is, someone who is ‘tricked, duped, or subjected to hardship. . . Id. (quoting Webster’s Third New International Dictionary 2550 (1981)).

We are persuaded that the word “victim” has commonly-understood notions of passivity, where the harm or loss suffered is generally unexpected and occurs without the voluntary participation of the person suffering the harm or loss. Although it is not without any foundation in logic that the government might fall under the wording of subsection 2(b) of NRS 213.005 (defining “victim” as one “who has been injured ... as a direct result of the commission of a crime”), it is a stretch for this court to hold, without incorporation of that provision into the sentencing statute and without more clearly defined markers indicating such a result, that it is appropriate to conclude that a police department that expends money to secure evidence is a “victim” of crime.

Research has uncovered very few decisions holding that police departments are “victims” within the meaning of sentencing statutes allowing restitution “to victims.” Therefore, very few courts have held that police departments are entitled, as a part of a defendant’s criminal sentence, to receive restitution of “buy money” from a criminal defendant who took the money in a drug transaction and was later convicted of a crime for engaging in that transaction. See State v. Pettit, 698 P.2d 1049, 1050-51 (Or. Ct. App. 1985).² In Pettit, the court’s holding that restitution to a police department was proper turned on the interpretation of a broadly worded statute. The Pettit court found that a police department was a “victim” under a statute that defined “victim” as “any person whom the court determines has suffered pecuniary damages as a result of defendant’s criminal activities.” 698 P.2d at 1051 (emphasis added).

Although the definition of “victim” in Pettit is one of several reasonable interpretations, we note that it was expressly provided for as a statutory definition. In addition, the court failed to address the primary issue that has concerned other courts — the fact that the police departments have actively and voluntarily participated in the conduct and are not passive recipients of harm or loss as the term “victim” commonly connotes.

In the absence of clear legislative markers leading us to such a broad definition, we cannot simply choose a definition of “victim” such as that in Pettit as the appropriate measure in this case. In light of the well-reasoned decisions cited above, which discussed the “passivity” element of victim status and noted the active role played by police departments in securing evidence as a normal operating expense, we cannot choose the construction which ignores these factors in favor of police departments who expend money to obtain evidence leading to conviction. We therefore vacate the restitution portion of Igbinovia’s sentence.

In light of the above, we need not address the fact that the district court judge overlooked that, even were he authorized to order restitution to Metro under this statute, he would still be authorized to order restitution to Metro only for the particular offense to which Igbinovia had pleaded guilty. See Erickson v. State, 107 Nev. 864, 866, 821 P.2d 1042, 1043 (1991) (holding that restitution may be ordered only in relation to an offense that a defendant has admitted, upon which he has been convicted, or for which he has agreed to pay restitution); Buffington v. State, 110 Nev. 124, 127, 868 P.2d 643, 645 (1994) (same). The state’s request that Igbinovia be “held accountable” for the amounts expended in transactions for which he was not convicted was thus amiss in any event.

We next address the claims of Mack and Menzelli that the district court judges who ordered that they pay restitution as conditions of probation erred. The power to impose conditions on probation must be authorized by the legislature. Nev. Const, art. 5, § 14; Van Dorn v. Warden, 93 Nev. 524, 525-26, 569 P.2d 938, 939 (1977). However, a district court judge enjoys wide discretion under grants of authority to impose such conditions. Creps v. State, 94 Nev. 351, 360, 581 P.2d 842, 848 (1978).

The general statutory grant of authority to fashion and impose probation conditions in Nevada is broad. NRS 176.185 provides, in relevant part:

Suspension of execution of sentence by court ....

1. Whenever any person has been found guilty in a district court of a crime ... the court [except in certain enumerated crimes] may by its order suspend the execution of the sentence imposed and grant probation to the convicted person as the judge thereof deems advisable.

(Emphasis added.) NRS 176.1853 also provides, in relevant part:

Terms and conditions of probation . . .

1. In issuing an order granting probation, the court may fix the terms and conditions thereof, including a requirement for restitution ....

(Emphasis added.) Finally, NRS 176.205 provides, in relevant part that, “By order duly entered, the court may impose . . . any condition of probation or suspension of sentence.” (Emphasis added.) These three emphasized provisions have been held to accord to district court judges a broad power to impose conditions of probation. See Creps, 94 Nev. at 360, 581 P.2d at 848 (court was authorized to order short-term incarceration in county jail as condition of probation, even absent express statutory authority). Thus, were these the only statutes the district judges had at their disposal, an order of restitution in the instant cases would have been permissible under these statutes alone.

In the instant case, however, a more particular statute also applies. NRS 176.189 provides, in relevant part:

Restitution as condition of probation or suspension of sentence.

1. The court shall order as a condition of probation or suspension of sentence, in appropriate circumstances, that the defendant make full or partial restitution to the person or persons named in the order, at the times and in the amounts specified in the order unless the court finds that restitution is impracticable. Such an order may require payments for medical or psychological treatment of any person whom the defendant has injured.

2. All money received by the division for restitution for:

(a) One victim may; and

(b) More than one victim must,

be deposited with the state treasurer for credit to the restitution trust fund. All payments from the fund must be paid as other claims against the state are paid.³

(Emphasis added.) In this statute, the legislature chose to accord broad authority to the district court judge to order restitution not only to “victims,” but to any “person or persons named in the order.”⁴ The legislature also authorized restitution for medical and psychological treatment, not to “victims,” but to “any person whom the defendant has injured.”⁵ Thus, the claims of Mack and Menzelli that the government must be shown to have been a “victim” must fail, as the statute does not require such a predicate fact.

It has been noted that the statutory provisions of the probation scheme must be strictly construed. See, e.g., Van Dorn, 93 Nev. at 526, 569 P.2d at 939. This principle, however, has been applied only to limit a district court judge to a particular statutory framework in making probation decisions. If a particular framework is included in the statutory probation scheme, the judge is not free to go outside that framework and exercise discretion under the general grant of authority. See id. In Van Dorn, this court noted that the Nevada Legislature had “carefully specified those instances in which credit may be given toward a prison term,” and held that the district court judge did not err in rejecting the defendant’s claim for credit for time allegedly served that would have fallen outside the statutory framework. Id.

As noted, the legislature has provided a framework for imposing restitution as a condition of probation; we hold that the district judges in the instant cases did not go outside the relevant provision. The district judges’ orders were authorized by NRS 176.189, and they did not rely on their general authority to order restitution in a manner that would not also have been authorized by NRS 176.189. In addition, NRS 176.189 necessarily vests discretion in a district judge, “in appropriate circumstances,” to determine which “person or persons” are entitled to restitution. Discretionary powers of the district court accorded by a statutory grant of authority must be interpreted liberally. See Creps, 94 Nev. at 360, 581 P.2d at 848 (“the particularly ameliorative nature of probation statutes compels a liberal interpretation of the discretionary powers conferred on the district courts”) (emphasis added). Accordingly, we conclude that the district court judges properly awarded restitution as conditions of probation in the instant cases.

We note that our conclusion is in line with the conclusions of a substantial number of other state courts that have interpreted their state probation condition provisions to allow the restitution of drug “buy money” to police departments. See, e.g., Schwing v. State, 633 P.2d 311, 313-14 (Alaska Ct. App. 1981) (allowing restitution as a condition of probation to “aggrieved parties”); State v. Zaruba, 306 N.W.2d 772, 775 (Iowa 1981) (allowing restitution only in relation to offenses for which defendant was actually convicted); State v. Stallings, 342 S.E.2d 519, 521 (N.C. 1986); State v. Connelly, 421 N.W.2d 859, 861 (Wis. Ct. App. 1988) (restitution of drug money was authorized under statute allowing for “reasonable and appropriate” conditions of probation).⁶

In conclusion, we vacate the portion of appellant Igbinovia’s sentence requiring restitution, because the government is not a “victim of the offense” within the meaning of the sentencing statute authorizing restitution to victims. We let stand, however, the conditions of probation imposed on appellants Mack and Menzelli that require that restitution be made to the appropriate government agencies, as such an order is authorized by the broader language of the probation statutes.

Young, Springer, and Rose, JJ., concur.

1 We note that the legislature did cross-reference the statutory definition of “victim” found in NRS 213.005 when it enacted NRS 176.015, which allows for “victim-impact” testimony before a convicted criminal defendant is sentenced. The definition has therefore been incorporated into NRS 176.015, for purposes of determining which “victim-impact” testimony is permissible.

2 U.S. v. Gibbens, No. 93-2203, 1994 WL 220364 *1, *9 (1st Cir. June 1, 1994), listed several state court decisions for its claim that “[c]ourts interpreting analogous state statutes [to the VWPA] have divided on this type of question.” The author of Gibbens, however, failed to note that some of the decisions it cited for the proposition that courts have held police departments to be “victims” actually involved scenarios in which the restitution order was a condition of probation and not a part of the sentence (State v. Stallings, 342 S.E.2d 519 (1986)) or involved statutes that specifically provided for “restitution to any law enforcement agency for reasonable expenditures made in the purchase of any controlled substances from such person ... as part of the investigation leading to such conviction” (State v. Rios, 465 N.W.2d 611, 613 (1991)). In State v. Hernandez, 822 P.2d 1011 (Idaho 1991), also cited in Gibbens, the decision turned on a statute that allowed, as part of a sentence, restitution for “costs incurred by law enforcement agencies in investigation of the violation for which the defendant is convicted.” Thus, the question in many of the cited cases was not whether the government was a “victim” within the meaning of sentencing statutes, but rather whether in the final analysis restitution was appropriate. 822 P.2d at 1014.

3 This court has stated previously, in dicta, that NRS 176.189(1) was “directed to the restoration of money or property to the victim of the offense of which the defendant is found guilty.” See Korby v. State, 93 Nev. 326, , 565 P.2d 1006, 1006 (1977). This court did not cite precedent, legislative history or authority from other jurisdictions.

The issue before this court in Korby was whether the district court judge possessed the authority to order that the defendant pay the costs of a trial in which the jury was unable to reach a verdict, when the same defendant later entered a guilty plea on a reduced charge to avoid retrial. The judge attempted to impose the restitution order as a condition of probation on the reduced charge to which the defendant had pleaded guilty. This court noted that “[i]t is evident that [NRS 176.189(1)] bears [no] relevance to the issue before us.” Id. The court ultimately held, in Korby, that a defendant simply cannot be made to pay for the expenses of a trial at which he was not convicted. Id.

4 We have not overlooked the fact that the legislature used the word “victim” in subsection two of the statute. See NRS 176.189(2). That provision authorizes the judge, if the “person . . . named in the order” is a “victim,” to order that the restitution sum be deposited with the state treasurer for credit to the restitution fund. That provision also requires the judge, if the order provides for restitution to more than one victim, to order that the sum be deposited with the state treasurer for credit to the restitution fund. This provision is not inconsistent with subsection one of the statute, which allows for restitution to a class of persons larger than those possessing “victim” status. See 176.189(1). Subsection two simply provides that if the “person or persons named in the order” have “victim” status, then the judge may or must follow a particular procedure for providing for disbursement of the restitution sum. We conclude that paragraph two speaks only to the procedure for disbursing to victims the restitution funds ordered and that it does not limit the class of persons to whom restitution may properly be ordered. A similar result was reached in State v. Connelly, 421 N.W.2d 859, 861 (Wis. Ct. App. 1988), a case in which that court interpreted a provision very similar to ours.

In Connelly, the court wrote:

Connelly reads [the relevant provision] too restrictively. The statute does not state that the only time a probationer can be required to pay out funds as a consequence of his or her criminal activity is to provide restitution to a crime victim. It simply requires that if there is an ascertainable victim, he or she must be compensated under the guidelines therein stated.

421 N.W.2d at 861. The court then noted that the adoption of the mandatory victim restitution provisions did not abridge the statutory authority already reposed in the trial judge to order conditions on probation that were authorized under other portions of the statutory scheme. Id.

5 Although we realize that the restitution of drug “buy money” is not an expense for medical or psychological treatment, we cite this provision to demonstrate that the legislature specifically did not require that the person to whom restitution may be ordered as a condition of probation have “victim” status.

6 We have discovered only one case in which an appellate court vacated the imposition by a trial court — as a condition of probation (actually “supervised release”) — a requirement that the defendant pay restitution for drug “buy money.” See U.S. v. Gall, 21 F.3d 107, 111 (9th Cir. 1994). There is, however, a disagreement among federal circuits on this issue, and we note that the issue has not yet been addressed by the United States Supreme Court. See U.S. v. Daddato, 996 F.2d 903, 906 (7th Cir. 1993).

In Daddato, Judge Posner, writing for the panel, relied on a “catch-all” provision of the federal supervised release statute to sanction the practice, and he noted that the defendant was not sentenced under the Victim and Witness Protection Act (VWPA), but under the supervised-release statute, which Posner considered independent from the VWPA. The Sixth Circuit panel that wrote Gall considered the VWPA to have been incorporated into the supervised release statute by reference. See Gall, 21 F.3d at 111.

Above all, this split emphasizes that resolution of this issue is a matter of statutory interpretation. Nevada’s statute is significantly more straightforward and comprehensible than the federal statute at issue in the reported federal cases. As a result, the federal cases are helpful but not persuasive.