United States v. Mary M. Porter

90 F.3d 64, 1996 U.S. App. LEXIS 18137, 1996 WL 410700
CourtCourt of Appeals for the Second Circuit
DecidedJuly 23, 1996
Docket407, Docket 95-1219
StatusPublished
Cited by32 cases

This text of 90 F.3d 64 (United States v. Mary M. Porter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Mary M. Porter, 90 F.3d 64, 1996 U.S. App. LEXIS 18137, 1996 WL 410700 (2d Cir. 1996).

Opinions

PARKER, Circuit Judge:

Mary Porter pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. Her plea agreement provided that “[t]he Government and defendant agree that the total loss which could be readily proven by the Government at trial against the defendant is $170,080.00.” The United States District Court for the Western District of New York (Judge William Skretny) sentenced Porter to six months imprisonment, followed by three years of supervised release, and ordered her to pay a $50 special assessment. She was also ordered to pay $169,043.21 in restitution to the victims of her crime.1 She was not ordered to pay a fine because the district court found that she was unable to do so.

Porter appeals from the order of restitution. She argues that the restitution order reflects an abuse of the district court’s discretion because she lacks a current ability to pay the restitution amount and because her earning potential suggests that she will not be able to comply with the restitution order in the future. Because the district court tailored the restitution order specifically to Porter’s situation and because the district court did not clearly err in considering the factors relevant to an order of restitution, we affirm.

BACKGROUND

I

A. The Defendant’s Circumstances

Porter falsified authorizations for electronic money transfers while working at two [66]*66Buffalo, New York, financial brokerage firms from 1986 to 1991. This practice resulted in the deposit of the firms’ customers’ money into Porter’s personal checking account. She also repeatedly deposited checks intended for customers into her personal checking accounts. As a result of this conduct, her employers’ customers lost approximately $170,000. Fortunately for the customers, the brokerage firms paid them back. Unfortunately for the brokerage firms, nobody paid them back. Thus, Porter’s crime caused her employers (now former employers) to lose approximately $170,000.

Porter’s Plea Agreement provided that “the Court may require restitution to be paid as part of the sentence pursuant to § 5E1.1 of the Sentencing Guidelines and 18 U.S.C. § 3663.” To assist him in his decision relating to restitution, Judge Skretny requested additional information from Porter regarding how she spent the stolen money. Porter provided the court with a handwritten summary of the payee and the amount of approximately 100 checks which Porter wrote from 1986 to 1991. These checks total roughly the same amount of money that she stole. Porter explained that most of her regular legal income during this time, approximately $700, net, per month, went to regular household expenses (groceries, utilities, medical bills, etc.), and she therefore did not include these expenses in the summary.

According to Porter’s summary of expenditures, approximately $30,000 of the money Porter stole went to pay credit card bills. There is no indication of what was purchased with these credit cards. Though Porter explains that some of these purchases were made by her husband, she provides no further substantiation of this claim. In an affidavit accompanying the summary of expenses, Porter stated that she “attempted to get copies of the actual charge card records, but my bank informed me it would take at least four to six weeks to obtain such records.” No further evidence has been provided to the court regarding what was purchased with these credit cards and by whom.

Porter’s summary shows she wrote cheeks totalling nearly $20,000 to buy furniture and automobiles. Another $16,000 went to “pay customer[s] back.”2 Also, according to Porter’s handwritten submission to the court, she wrote checks totalling at least $30,000 for her husband.

Porter explained to the district court that she was in an abusive marriage during the time she was stealing money. As police records indicate, her husband physically abused her. Furthermore, she claimed that her husband did not contribute to household expenses despite holding a full time job. Porter explained to the court that “the overwhelming majority of the funds” were used by her husband, or used by her to support her two sons. Porter gave her husband money to make him less abusive. According to Porter, her husband used this money at times to “take off to golf or go on vacations alone, which meant that he was not around to hurt me.” Her husband apparently believed the money Porter stole came from an inheritance. Notwithstanding these difficult circumstances, Porter continues to acknowledge the wrongfulness of her conduct.

Porter has since divorced.3 She is presently 37 years old. She has sole custody over one child, and joint custody over another. A Presentence Report stated that Porter’s expenses exceed her income, that she was behind in her rent, and that she owed more than $10,000 in credit card bills. The Report concluded that Porter lacked the financial resources to pay a fine. The Presen-tence Report noted that Porter had recently applied for food stamps and rental assistance from the local Department of Social Services. The government has not challenged Porter’s or the Presentence Report’s account of her situation.

[67]*67B. Procedural History

This is the second time this court has reviewed an order of restitution against Mary Porter. Judge Skretny first sentenced Porter on October 27, 1993. See United States v. Porter, 41 F.3d 68 (2d Cir.1994) (“Porter I ”). Porter’s first sentence included an order that restitution be paid “in full immediately.” Notwithstanding this language, and no doubt because of his awareness of Porter’s financial condition, Judge Skretny ordered that “[execution of this restitution judgment of $169,043.21 is stayed provided that the defendant makes timely installments on a schedule to be fixed by the U.S. Bureau of Prisons while incarcerated and by the U.S. Probation Office while on supervised release.” Porter appealed from this order, arguing that it was “unduly harsh and an abuse of discretion.” Id. at 69.

Two members of the panel in Porter I did not address the harshness of the restitution order. Instead we reversed the restitution order as an improper delegation of judicial powers and remanded for re-sentencing. Id. at 71. A sentencing judge may not authorize a probation officer to dictate the amount of restitution or to establish a schedule for repayment of a restitution order. Those decisions, we held, are for judges alone.

Judge Winter, writing separately, expressed concern that Porter “cannot conceivably repay over $169,000.” Judge Winter concluded that imposing such an order on a person in Porter’s position “is flatly inconsistent” with what Congress had in mind when it authorized orders of restitution. Id. at 72. The other members of the panel did not address Judge Winter’s concern, limiting the court’s ruling to the impropriety of delegating judicial duties. Thus, while we are certainly cognizant of Judge Winter’s concurrence, it is not binding on this panel.

On remand from this court’s opinion in Porter I, on April 11, 1995, Judge Skretny issued the order now before us. It provides that:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Rossi
Second Circuit, 2010
United States v. Donaghy
570 F. Supp. 2d 411 (E.D. New York, 2008)
State v. Tate
653 S.E.2d 892 (Court of Appeals of North Carolina, 2007)
United States v. Lin Guang
511 F.3d 110 (Second Circuit, 2007)
United States v. Geiger
245 F. App'x 86 (Second Circuit, 2007)
United States v. Green
81 F. App'x 364 (Second Circuit, 2003)
United States v. Searle
65 F. App'x 343 (Second Circuit, 2003)
United States v. Nancy Jacques
321 F.3d 255 (Second Circuit, 2003)
United States v. Cummings
189 F. Supp. 2d 67 (S.D. New York, 2002)
United States v. Luiz Ben Zvi
242 F.3d 89 (Second Circuit, 2001)
United States v. Hesham Ismail
219 F.3d 76 (Second Circuit, 2000)
Lyndonville Savings Bank & Trust Co. v. Lussier
211 F.3d 697 (Second Circuit, 2000)
United States v. Leon-Delfis
203 F.3d 103 (First Circuit, 2000)
United States v. Giuffrida
66 F. Supp. 2d 811 (S.D. West Virginia, 1999)
United States v. Lester Mattice
186 F.3d 219 (Second Circuit, 1999)
United States v. Harris
60 F. Supp. 2d 169 (S.D. New York, 1999)
United States v. Diaz
176 F.3d 52 (Second Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
90 F.3d 64, 1996 U.S. App. LEXIS 18137, 1996 WL 410700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mary-m-porter-ca2-1996.