United States v. Collins

Opinion

USCA1 Opinion

       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-2368



                          UNITED STATES,



                            Appellee,



                                v.



                ADAM COLLINS, A/K/A THOMAS SMITH,

            A/K/A WILLIAM GETCHELL, A/K/A CHAS NORTON,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



               Hill and Cyr, Senior Circuit Judges.



                      _____________________



    Leo T. Sorokin, Federal Defender Office, with whom

Elizabeth L. Prevett, Federal Defender Office, was on brief, for

appellant.

    Joshua Levy, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief, for

appellee.



                       ____________________



                       December 27, 1999

                       ____________________  HILL, Senior Circuit Judge.  The defendant was convicted

of conspiracy to commit bank fraud, mail fraud, bank fraud, and

counterfeiting and was sentenced to pay restitution in an amount

equal to the total loss to all the victims of the scheme. 

Defendant appeals the restitution order.

                                I.

  Adam Collins, along with several others, was convicted of

conspiracy to commit bank fraud as well as several substantive

counts including bank fraud, mail fraud, and counterfeiting.  These

charges arose from a scheme in which the conspirators obtained the

account numbers of legitimate businesses, ordered checks with the

company names and account numbers, and cashed them at check cashing

facilities, supermarkets, and banks.

  In the Indictment, Collins was alleged to have obtained

the copies of checks issued by the legitimate businesses, placed

the orders for new checks drawn on these businesses' accounts,

arranged for them to be sent to a leased mailbox, gathered other

conspirators to obtain false identification from agencies such as

the Division of Motor Vehicles, issued checks payable to these

false identifications, and employed co-conspirators to go out and

cash these checks at various stores, supermarkets and check cashing

establishments.  The Indictment also names the specific co-

conspirator who is alleged to have cashed specific individual

checks.

  In December of 1997, Collins pled guilty to a single

count of conspiracy to commit bank fraud.  At the plea hearing, the

government stated that the conduct of the defendant in the

conspiracy consisted of the cashing of a counterfeit check in the

amount of $302.53 and the cashing with co-defendants and others of

at least 67 fraudulent checks.  In its summary of the evidence

against Collins, the government included all the checks cashed by

the conspirators.  Collins objected.

  In the Presentence Report (PSR), Collins' various check

cashings were detailed. The first of some 96 checks was cashed by

Collins on May 17, 1991, and the last on August 2, 1995.  The PSR

listed eight companies whose checks were counterfeited and cashed

by Collins.  It stated that he went out to cash checks with other

co-conspirators who were cashing checks under these same company

names, and calculated his base offense level according to the

losses attributable to all of the checks cashed in the names of the

eight companies.  The total amount of these checks cashed was

$158,150.

  The PSR also stated that five other individuals involved

cashed checks totaling $132,880, and that these checks had names of

companies other than those on the checks cashed by Collins.  In the

"Victim Impact" section, the PSR stated that the total loss to

victims of all check-cashing alleged in the Indictment for whom the

government had been able to determine names and addresses was

$274,278.67, and concluded that this loss was attributable to each

conspirator.

  Collins objected, asserting that the loss calculation for

"restitution can only be ordered for persons directly harmed by

defendant's criminal conduct in the course of the . . . conspiracy"

citing 18 U.S.C.  3663(a)(2).  The government argued that the

amounts of checks cashed by individuals about whose check cashing

the defendant was aware should be added to the $158,150 figure as

a loss "reasonably foreseeable" to Collins.

  The district court ordered restitution in the full amount

and Collins appealed.  We review the legality of the order of

restitution de novo.  United States v. Rostoff, 164 F.3d 63, 66

(1st Cir. 1999).

                               II.

  Prior to 1990, the Victim Witness Protection Act (VWPA or

the Act), 18 U.S.C.  3663, provided that the sentencing court "may

order . . . the defendant [to make] restitution to any victim of

[the] offense."  In 1990, the Supreme Court held that this language

limited restitution orders to the loss caused by the specific

offense which formed the basis for the defendant's conviction. 

Hughey v. United States, 495 U.S. 411, 414 (1990) (restitution may

be ordered only for loss caused by one count of unauthorized use of

credit card to which defendant plead guilty; not for three

remaining counts in the indictment).

  In response, Congress amended the VWPA to provide that a

defendant is liable for restitution to:

    a person directly and proximately harmed as a

  result of the commission of an offense for

  which restitution may be ordered including, in

  the case of an offense that involves as an

  element a scheme, conspiracy, or pattern of

  criminal activity, any person directly harmed

  by the defendant's criminal conduct in the

  course of the scheme, conspiracy, or pattern.



18 U.S.C.  3663(a)(2)(Supp. III 1997).  With the 1990 amendment,

Congress broadened the scope of restitution from losses

attributable solely to the offense of conviction to all losses

caused in the course of a defendant's criminal conduct, whether the

defendant is convicted of each of those offenses or not.  United

States v. Hensley, 91 F.3d 274, 276 (1st Cir. 1996).

  Collins agrees that Congress broadened the scope of

restitution from offenses of conviction to all offenses involved in

a prosecution.  He contends, however, that Congress did not intend

to broaden the scope of restitution from the conduct of the

defendant to the conduct of others.  He argues that the amendment's

reference to the harm "directly" caused by the defendant's criminal

conduct is language of limitation, intended to proscribe liability

for the conduct of others, even if they are co-conspirators. 

Although he cites no authority for this proposition, he argues that

the plain meaning and principles of leniency require this

interpretation.

  We disagree.  The Fourth and Tenth Circuits have

specifically rejected this interpretation of the amendment's

"directly harmed" language.  United States v. Nichols, 169 F.3d

1255 (10th Cir. 1999); United States v. Plumley, 993 F.2d 1140 (4th

Cir. 1993).  In Plumley, the Fourth Circuit rejected the

defendant's argument that she did not "directly harm" a robbed bank

as required by the 1990 amendment because she only drove the

getaway car.  The court reasoned that:

    Nothing in the plain language of  3663(a)(2)

  or its legislative history suggests that

   3663(a)(2) usurps the settled principle that

  a criminal defendant who participates in a

  conspiracy is liable in restitution for all

  losses flowing from that conspiracy.



993 F.2d at 1142 n.2.

  Relying on Plumley, the Tenth Circuit rejected a similar

argument that the "directly harmed" language precludes restitution

if the harm is caused by a co-conspirator.  Nichols, 169 F.3d at

1278.  In that case, Nichols contended that the district court

could not order him to pay restitution to the General Services

Administration for the bombing destruction of the Murrah building

in Oklahoma City because he did not place and detonate the bomb. 

He specifically argued that prior cases holding a co-conspirator

liable for all the reasonably foreseeable losses caused by a

conspiracy were not controlling because they do not address the

1990 amendments to the VWPA.

  In upholding the district court's restitution order, the

Tenth Circuit rejected this argument, noting that the "directly

harmed" language in the 1990 amendments does not change the settled

rule that "losses caused by the entire conspiracy, not just losses

caused by those acts committed by the defendant, can be attributed

to the defendant when the district court orders restitution."  Id.

(citing United States v. Brewer, 983 F.2d 181, 185 (10th Cir.

1993)).

  We have previously held that each conspirator may be

ordered to pay restitution for all the reasonably foreseeable

losses caused by any conspirator in the course of the conspiracy. 

United States v. Royal, 100 F.3d 1019, 1032 (1st Cir. 1996).  In

Royal, the defendant was convicted of mail fraud and conspiracy to

commit mail fraud and ordered to pay restitution in an amount

greater than the sum of the four fraudulent loan checks he actually

mailed.  In upholding the restitution order, we said:

    In the sentencing context, one convicted of

  conspiracy may be held liable for the acts of

  his co-conspirators in furtherance of the

  conspiracy that are reasonably foreseeable .

  . . .  Thus, the district court may order

  Royal to pay restitution not only for an

  amount equivalent to the four student loan

  checks involved in the mail fraud counts, but

  also for any other reasonably foreseeable loss

  caused by Royal or his co-conspirators acting

  in furtherance of this conspiracy.



Id. (emphasis added).  The 1990 amendments to the VWPA did nothing

to change this result.  See United States v. Davis, 117 F.3d 459

(11th Cir. 1997)(not plain error to award restitution on each

member in conspiracy based on the acts of all); United States v.

Lewis, 104 F.3d 690, 693 (5th Cir. 1996) (defendant responsible for

entire amount of loss caused by conspiracy regardless of whether he

personally participated in each illegal transaction); United States

v. Chaney, 964 F.2d 437 (5th Cir. 1992) (permitting Pinkerton

liability with regard to restitution where defendant's conduct was

part of a conspiracy and inextricably related to the losses

suffered).  Contrary to Collins' theory, the amendments merely

reaffirmed that Congress intends the Act to permit the federal

courts to order full restitution to all victims of a criminal

course of  conduct.

  Collins distinguishes the authority cited above by

arguing that these orders of restitution were upheld because they

were imposed on defendants who played "major roles" in their

conspiracies.  We can find no support for this argument in any of

the cases cited above, the language of the statute, or the

legislative history.  In the context of a conspiracy, it is clear

that a defendant is liable in restitution to all the victims of the

reasonably foreseeable acts of his co-conspirators.  No court has

ever held to the contrary.

                               III.

  A defendant in a conspiracy is liable for all the

reasonably foreseeable loss caused to the victims of the

conspiracy.  Accordingly, the order of restitution in this case is

AFFIRMED.