United States v. Carol J. Lampien

89 F.3d 1316, 1996 U.S. App. LEXIS 17133, 1996 WL 389346
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 12, 1996
Docket95-3396
StatusPublished
Cited by23 cases

This text of 89 F.3d 1316 (United States v. Carol J. Lampien) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carol J. Lampien, 89 F.3d 1316, 1996 U.S. App. LEXIS 17133, 1996 WL 389346 (7th Cir. 1996).

Opinions

ILANA DIAMOND ROVNER, Circuit Judge.

Pursuant to a written plea agreement, Carol J. Lampien pleaded guilty to a one-count information charging her with embezzling funds from an insurance company in violation of 18 U.S.C. § 1033(b)(1)(A). Lam-pien was sentenced to twenty-four months in prison, to be followed by a three-year term of supervised release. Pursuant to the Victim and Witness Protection Act of 1982 (“VWPA”), the district court ordered Lam-pien to pay full restitution to the victim, Wausau Insurance Company (Wausau), in the amount of $498,972.94. In addition to requiring Lampien to make monthly payments of $350 in partial satisfaction of the restitution obligation, the court also directed her to make a lump sum payment that included the execution of a quitclaim deed conveying her interest in her home to Wausau. The court further ordered Lampien to provide it with a copy of her mother’s will and of Lampien’s disclaimer of interest in her mother’s estate, by which she had allowed her share of the estate to pass to her son, Terry J. Lampien. During the pendency of this appeal, it was determined that Lampien’s disclaimer of interest was invalid, and both Lampien and her son were subsequently held in civil contempt for refusing to relinquish assets that were ordered transferred to the victim as part of Lampien’s restitution obligation.1 Carol Lampien appeals the district court’s restitution order on the grounds that (1) her interest in her home is protected by the Wisconsin homestead exemption, Wis. Stat. § 815.20 (1994), which prevents the court from ordering her to relinquish that interest in favor of any creditor, with certain enumerated exceptions she asserts are inapplicable to this case, (2) the district court had no authority under the Victim and Witness Protection Act of Í982, as amended, 18 U.S.C. §§ 3663-3664 (1990), to order Lam-pien to quitclaim her home to Wausau, and (3) the court abused its discretion in ordering the payment of full restitution, and in requiring Lampien to make monthly restitution payments that are clearly beyond her means. [1318]*1318For the reasons that follow, we vacate the restitution order and remand for further proceedings.

I. BACKGROUND

At the time that Wausau discovered the embezzlement, Lampien had been employed in the company’s Milwaukee branch office for forty-two years. In early August 1993, Lam-pien held the position of Claims Services Representative in the Workers’ Compensation Claims Unit when she began misappropriating funds by issuing checks to fictitious payees on existing workers’ compensation accounts and having the checks mailed to her home. To complete the fraudulent scheme, Lampien forged the signatures of the nonexistent payees, endorsed the checks over to herself, and cashed them. The embezzlement escaped detection until mid-March 1995, when it was accidentally discovered by two of Lampien’s co-workers. At that time, Wausau determined that 521 fraudulent checks totalling $498,972.94 had been negotiated by Lampien in this manner. When confronted with evidence of the embezzlement, Lampien freely admitted what she had done, and explained how she was able to conceal her activities from Wausau for a period of approximately nineteen months. Lampien then entered into a plea agreement with the government, conceding responsibility for the total amount of loss that had come to light as a result of Wausau’s investigation. On July 19, 1995, she pleaded guilty to embezzlement from an insurance company in violation of 18 U.S.C. § 1033(b)(1)(A). The district court ordered the preparation of a presentence report and advised Lampien that she would be required to cooperate in its preparation by providing the probation department with further information concerning her offense.

Lampien’s sentencing hearing took place on September 27, 1995. At the hearing, the government advised the court that Lampien had been highly reluctant to cooperate with the probation department in disclosing her assets, and that she had failed to inform the probation department that her mother had died and had left an estate. Although the sentencing report was quite vague in accounting for Lampien’s disposition of the embezzled funds, the government did not indicate that any part of those funds remained in Lampien’s control. In addition to sentencing Lampien to a twenty-four month term of imprisonment and three years of supervised release, the district judge, over defense counsel’s objections, ordered Lampien to make full restitution to Wausau in the amount of $498,972.94. The restitution obligation took the form of a lump sum payment due within thirty days, followed by a series of installment payments of at least $350 per month, set to begin thirty days from the date of sentencing and to terminate six months prior to the expiration of Lampien’s supervised release. To satisfy the initial lump sum payment, the district court ordered Lampien to execute a quitclaim deed conveying her interest in her home to Wausau.2 The court also ordered Lampien to transfer the value of her ITT-Hartford variable rate annuity to Wau-sau and to pay Wausau $7,500 in cash, all within thirty days of the sentencing hearing. The district court estimated the value of the assets Lampien was ordered to relinquish to be $99,172, or approximately one-fifth of the total restitution owed to Wausau, thus leaving approximately $400,000 to be paid in monthly installments over a period of fifty-four months.

In setting the minimum monthly installment payment of $350, the judge relied on the budget submitted by Lampien to the probation department and incorporated in Lampien’s presentence report. Accepting the accuracy of the figures in the presen-tence report, the court noted that Lampien was due to receive a monthly pension benefit from Wausau of $920.69, and that Lampien would also be eligible to receive $716 per month in Social Security benefits upon attaining the age of sixty-two. According to the items listed in the budget, Lampien would thus receive a gross income of $1,636.69 per month, and incur expenses of $1,345.53 per month, leaving substantially less than the requisite $350 per month the [1319]*1319court had allocated as the minimum restitution payment. Although noting that neither party had anticipated that the initial lump sum payment would include the relinquishment of Lampien’s home, the district judge nevertheless ordered Lampien to quitclaim her home to Wausau. When counsel pointed out that Lampien’s monthly budget had been computed on the assumption that Lampien would retain ownership of her home free of any mortgage payments, and that her housing expenses would thus entail property taxes, homeowner’s insurance and maintenance costs rather than rental payments, the district court replied that when relieved of the expenses associated with owning a home and an automobile, Lampien would be able to afford approximately $380 per month in rent, and that in any event, Lampien could live with her son Terry in her late mother’s house for a period of time after her release from prison.

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Bluebook (online)
89 F.3d 1316, 1996 U.S. App. LEXIS 17133, 1996 WL 389346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carol-j-lampien-ca7-1996.