United States v. Patricia Hand

863 F.2d 1100, 1988 U.S. App. LEXIS 17412, 1988 WL 136490

• Court: Court of Appeals for the Third Circuit
• Decided: December 22, 1988
• Docket: 88-5334
• Status: Published

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

Appellant pleaded guilty to one count of contempt of court in violation of 18 U.S.C. § 401 (1982). She now appeals the judgment of the district court ordering her, as a special condition of probation, to pay restitution. We will affirm the decision of the district court.

I.

On February 11, 1987, appellant, Patricia Hand, was chosen to serve as a juror in United States v. Militello, a criminal trial involving multiple defendants charged with narcotics violations. Among the seven co-defendants tried was George Pepe, who had been indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. (a)(1), 846 (1982).¹ See Appellee’s Brief at 5.

After six weeks of testimony, the jury received the case for deliberation on March 27,1987. During deliberation, which lasted until April 3, 1987, Hand and Pepe had impermissible contact: Pepe gave Hand flowers, they exchanged two or three notes, and Pepe twice telephoned Hand at her residence. The jury returned verdicts of guilty against five co-defendants, found one not guilty, and deadlocked with respect to Pepe. The jury vote on Pepe was 11 to 1 in favor of conviction. Hand was the sole exception.

Hand’s conduct was brought to the attention of the trial judge when five co-defendants filed motions for a new trial, claiming that they had been denied due process because of the contacts between Hand and Pepe. The district court granted an eviden-tiary hearing on their motions. However, two of these co-defendants pled guilty to lesser charges, and withdrew their motions, before the hearing. The court then vacated the verdicts against the remaining three co-defendants after hearing evidence, but they also pled guilty to lesser charges prior to commencement of a new trial. Moreover, Pepe, who had filed a motion for acquittal after the mistrial, withdrew his motion and pled guilty to lesser charges involving his original offense.

As a result of her conduct, Hand pleaded guilty to contempt of court in violation of 18 U.S.C. § 401 (1982). She also agreed to cooperate with the investigation and prosecution of additional charges against Pepe. In a subsequent trial, she testified against Pepe, who was charged with jury tampering and obstruction of justice in contravention of 18 U.S.C. § 1503 (1982). Pepe was convicted of these charges and sentenced to a $5,000 fine and one year imprisonment.

Hand was later sentenced to a six month jail term, three of which were suspended, two years probation and assessed twenty-five dollars. As a special condition of probation, however, Hand was ordered to pay $46,850 in restitution under authority of the Victim and Witness Protection Act of 1982 (“VWPA” or “the Act”), 18 U.S.C. §§ 3579, 3580 (1982), redesignated 18 U.S.C. §§ 3663, 3664 (Supp. III 1985) (eff. Nov. 1, 1987).² See United States v. Hand, No. 87-201, Judgment and Probation Order (D.N.J. Apr. 8, 1988) reprinted in Appellant’s App. at 5. This restitution represented losses resulting from Hand’s offense that were sustained by the United States Attorney’s Office, the Drug Enforcement Agency (“DEA”), and the United States Marshal’s Service, calculated as follows: (1) $14,500, which was approximately one-sixth the annual salaries of the two Assistant U.S. Attorneys who prosecuted the Militello case for seven weeks of trial and two weeks of trial preparation; (2) $12,000, which was the same fraction of the salaries of the two DEA agents assigned to the case; (3) $20,000 in travel costs and lodging for the U.S. Attorneys and D.E.A. agents; and (4) $350 in witness fees and travel expenses paid by the U.S. Marshal Service. See Appellee’s Brief at 8. Hand appeals from the judgments of conviction and sentence imposed against her only on the issue of restitution. We are not, however, persuaded that the court’s imposition of sentence constituted any abuse of discretion and, accordingly, we will affirm.

II.

Hand presents three substantive challenges to the district court’s order for restitution. First, she contends that the entire restitution order is improper because any damages to the government are remote and speculative. She argues that the “government cannot claim that the results of [the] trial were lost[ ] when, in fact, the presentation of the case caused defendants to plead guilty during and after the completion thereof.” Appellant’s Brief at 6. Second, Hand asserts that because the DEA agents were witnesses at the trial, she should not be required to pay restitution for their salaries and expenses. Finally, she argues that restitution for the Assistant U.S. Attorneys is improper because the “government did receive some benefit from the trial in question.” Appellant’s Brief at 8. None of these contentions warrant intrusion upon the district court’s judgment.

The damages claimed by the government are neither remote nor speculative. In promulgating the YWPA, Congress intended to “insure that the wrongdoer [be] required to the degree possible to restore the victim to his or her prior state of well-being.” S.Bep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.Code Cong. & Admin. News 2515, 2536. While the term “victim” is not defined in the statute, appellate courts have interpreted the congressional mandate to include governmental bodies. See United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir.1986) (county was a “victim” under VWPA since defendant had defrauded its social service agency of welfare payments), cert. denied 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986); United States v. Dudley, 739 F.2d 175, 178 (4th Cir.1984) (“the government is not foreclosed from establishing that it has been victimized by the crime and recovering restitution” for unlawful use of food stamp coupons). Unfortunately, the dissent speaks of the “U.S. Attorney’s Office” as though it were not part of a branch of government and chooses selectively excerpts from the legislative history that do not profess to define the full coverage of the statute.

In our view, the U.S. Attorney’s Office was as much a victim in this case as was the social service agency in Ruffen and the United States Department of Agriculture in Dudley. Indeed, in Dudley, the Court of Appeals for the Fourth Circuit anticipated and rejected the argument of the dissent by noting:

It does not require great perspicacity to appreciate the substantial difference between restitution to the person victimized by the crime (who could, as here, be another arm of the government bringing the prosecution, but who, more likely than not, will prove to be a private third party) and forfeiture, collectible only by the avenging United States government bent on punishing an offender.

739 F.2d at 177 (emphasis partially added). Certainly, the U.S. Attorney’s Office is the “arm of the government bringing the prosecution,” and it has no lesser rights than other victims who sustain considerable economic losses. Like most private parties, the lawyers in the U.S. Attorney’s Office and the investigatory agents do not work without compensation. When the time for which the government compensated its employees was “lost” because of Hand’s illegal acts, it was just as significant a financial loss to the government as when, in Dudley, food stamps were stolen and fraudulently used. To paraphrase Abraham Lincoln, a lawyer’s time is his stock and trade. When the U.S. Attorney’s Office has expended time and resources that are rendered futile, as in this case, by the misconduct of a juror, the financial losses incurred are indistinguishable from those losses that occur when the “stock and trade” of another government agency, such as food stamps in the Department of Agriculture, are misappropriated.

In arguing that the government is not a victim within the meaning of the statute, the dissent relies on testimony given to the Subcommittee on Criminal Law by a retired civil servant who suffered a broken hip as the result of a purse snatching. The dissent contends that the plight of such individuals was the motivation behind Congress recognizing that “too often the victim has been the ‘forgotten person’ in the criminal justice system.” S.Rep. No. 532, 87th Cong., 2d Sess. 10, reprinted in 1982 U.S.Code Cong. & Admin. News at 2516. While certainly Congress intended to provide restitution to victims who suffer broken hips when their purses are snatched, there is not a word in the Senate Report to suggest that Congress intended to allow restitution only for those individuals who are perceived of as “forgotten persons.” The ultimate logic of the dissent is that if General Motors or Chase Manhattan Bank had funds stolen, in violation of federal criminal law, a judge could not require the wrongdoer to pay restitution to those corporations because they do not fall under the penumbra of “forgotten persons” in our capitalistic system. We find that, under the facts of this case, the United States Attorney’s Office was a victim, even though it may not be as sympathetic a figure as the aged civil servant who was mugged.³

Here, the government was certainly harmed by Hand’s conduct since it lost “hard-won convictions of five defendants and a wasted effort to try George Pepe before an impartial jury.” Appellee’s Brief at 12. While Hand argues that the fruits of the Militello trial were not totally vitiated, because the government was able to salvage guilty pleas to lesser charges from the five defendants and Pepe, we disagree with her conclusion that those pleas rendered the government’s damages minuscule simply because it “did not have to re-try the original case.” Appellant’s Brief at 6. The government has lost five original jury verdicts and suffered a mistrial with regard to Pepe. Absent a showing of sufficient evidence to persuade a court that these verdicts would have been overturned and the mistrial would have occurred regardless of Hand’s offense, restitution for the government’s losses is proper.⁴

Difficulties of measurement do not preclude the court from ordering a defendant to compensate the victim through some restitution. Indeed, Congress instructed that “[i]n those unusual cases where the precise amount owed is difficult to determine, [the VWPA] authorizes the court to reach an expeditious, reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim.” S.Rep. No. 532, at 31, reprinted in 1982 U.S.Code Cong. & Admin. News at 2537. Cf. Green v. USX Corp., 843 F.2d 1511, 1532 (3d Cir.1988) (“ ‘The risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim.’ ”) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 889 (3d Cir.1984)) (citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931)). In this case, the government seeks restitution for salaries and expenses of Assistant U.S. Attorneys, DEA agents and U.S. Marshals, since their time and energy was wasted in the Militello trial as a result of Hand’s conduct. There is no doubt that compensation for such expenditures is permissible under the VWPA, given that Congress desired for offenders “to undue the financial harm they have done [their victims]”, S.Rep. No. 532, at 30, 1982 U.S.Code Cong. & Admin. News at 2536 (emphasis added). See also United States v. Johnson, 657 F.Supp. 358 (D.Conn,1987) (preparer of false tax returns ordered to pay investors restitution for losses incurred from tax penalties and interest).

We also reject Hand’s argument that she should not be required to pay for the salaries and expenses of the DEA agents because they were witnesses in the Militello trial. She relies on United States v. Kenney, 789 F.2d 783 (9th Cir.1986), cert. denied 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986), in which the court of appeals vacated a portion of a restitution order that required a bank robber to reimburse a bank for the wages of its employees who testified against him at trial. The Kenney court reasoned that the cost to the bank of having its employees miss work to testify was a consequence of the robbery, but was not part of any direct harm done to the bank.⁵ Consequently, such an expenditure was deemed “ ‘too remote to form the basis for restitution.’ ” 789 F.2d at 784 (quoting United States v. Tyler, 767 F.2d 1350, 1351 (9th Cir.1985)). In the instant case, however, the DEA agents’ testified not against Hand, but against defendants indicted on narcotics charges. Since the fruits of the agents’ testimony — five guilty verdicts — were wasted as a direct result of Hand’s contact with Pepe, we find that the requisite causal connection exists between the government’s injury and Hand’s conduct to justify an order for restitution.

III.

Hand contends that the district court violated her sixth amendment right to confrontation by relying “on a simple statement of alleged loses suffered by the government delivered to the defense attorney on the morning of the sentencing, minutes prior thereto.” Appellant’s Brief at 9. We do not reach this argument, however, because Hand waived the assertion of error by failing timely to object to the presentence investigation report which contained an addendum explaining the method used for calculating restitution.⁶ Cf. United States v. Kail, 804 F.2d 441, 450 (8th Cir.1986) (trial court’s reliance on presentence report not violative of due process when defendant given the opportunity to contest).

Consequently, Hand’s argument, based on United States v. Giambrone, 602 F.Supp. 563, 570 (S.D.N.Y.1984), that § 3580 of the VWPA guaranteed her a hearing on whether the government’s claimed expenses flowed directly from her actions and on whether she possessed adequate financial resources to make restitution, must be rejected. There is no absolute right to a hearing under the VWPA. The Act only provides that “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of evidence.” 18 U.S.C. § 3580(d), redesignated 18 U.S.C. § 3664(d) (Supp. III 1985) (eff. Nov. 1, 1987) (emphasis added). Unlike defendants in Ciam-brone, who objected to the government’s claimed losses and their ability to make restitution, Hand never objected during the sentencing hearing. Therefore, the district court properly found that there was no “dispute” warranting a hearing. Cf. United States v. Poliak, 844 F.2d 145, 155 (3d Cir.1988) (hearing was necessary because “[t]he district court made only a concluso-ry finding as to appellant’s ability to make restitution”) (emphasis added).

Hand further argues that the district court erroneously placed the sole burden of paying restitution upon her, even though Pepe was equally culpable. In rejecting this contention, we note from outset that as between persons charged with same or similar offenses, “[t]he Constitution permits qualitative differences in meting out punishment_” Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970). We also note that Hand’s reliance on United States v. Anglian, 784 F.2d 765 (6th Cir.1986), cert. denied 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986), is misplaced. While holding that the relative culpability of co-defendants is a factor to be considered in a restitution order, the appellate court in Anglian admonished “that this opinion should not be read as requiring the consideration of relative culpability in making every restitution order.” Anglian, 784 F.2d at 768. Moreover, we have held that

[application of the restitution provisions of the VWPA will invariably result in some sentencing disparity since the statute authorizes the sentencing judge to consider the particular losses sustained by the victim and the financial circumstances of the defendant_ The individualized focus of the VWPA necessitates the exercise of judicial discretion in the sentencing process. So long as this discretion is properly exercised, however, the mere disparity in sentences under the VWPA does not offend equal protection.

United States v. Palma, 760 F.2d 475, 478 (3d Cir.1985). But even if we were to read Anglian in the light most favorable to Hand, the fact that the district court placed upon her the sole burden of paying restitution does not suggest that it was oblivious to Pepe’s culpability or to the punishment that he had already received. For his part in obstructing justice, another district judge had fined Pepe $5,000 and sentenced him to a significant term of imprisonment. The mere fact that Hand and Pepe received different punishments from different judges does not strike us as irrational or violative of due process and, certainly, did not constitute an abuse of discretion.

Hand’s final contention is that the district court incorrectly applied federal sentencing guidelines found under 18 U.S.C. § 3553 (Supp. Ill 1985), as well as New Jersey’s sentencing criteria,⁷ by failing to take into account mitigating factors, such as the fact that she had no previous criminal history, that she admitted her wrongdoing, and that she fully cooperated with authorities. We find that the court was not bound to consider the factors listed under § 3553 because that statute did not become effective until November 1, 1987, after the events in this case took place. See Pub.L. No. 99-217, §§ 2, 4, 99 Stat. 1728 (1985). However, the court correctly applied the VWPA’s procedure for issuing an order of restitution by taking into consideration factors it deemed appropriate.⁸ Specifically, it considered the mitigating circumstances in this case, as shown in its explanation of Hand’s punishment. The court held that

this sentence is imposed for the purposes of punishment, for the purposes of general deterrence to anyone else who would dream of abusing the sacred authority that they had been given under our laws to jurors, while at the same time imposing a penalty for those purposes measured by this defendant’s particular entitlement to consideration for her cooperation and for the absence of any criminal conduct.

United States v. Hand, No. 87-201, Transcript of Sentencing Proceeding at 13 (D.N.J. Apr. 8, 1988), reprinted in Appellant’s App. at 17 (emphasis added).

IV. Conclusion

We conclude that the district court was well within its statutory grant of authority in ordering Hand to pay restitution. Moreover, we find that it committed no constitutional or procedural violations in imposing sentence. Accordingly, we will affirm the judgment of the district court.

1 . Eleven individuals had been indicted in this case. Three of these persons pleaded guilty prior to trial and one other opted for a pretrial diversion program that resulted in dismissal of the charges against him.

2 . Section 3579 in pertinent part provides:

(a)(1) The court, when sentencing a defendant convicted of an offense under this title ..., may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense....

(b) The order may require that such defendant—

(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense—

(A) return the property to the owner of the property or someone designated by the owner; or

(B) if return of the property under subpara-graph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of—

(i) the value of the property on the date of the damage, loss, or destruction, or (ii) the value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned....

18 U.S.C. § 3579(a)(1), (b)(1) (1982), redesigna-ted 18 U.S.C. § 3663(a)(1), (b)(1) (Supp. Ill 1985) (eff. Nov. 1, 1987).

3 . We also do not find the dissent's references to McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), or to the right to a republican form of government helpful for analytical purposes. The dissent fails to recognize that this case concerns a restitution statute that seeks to "restore the victim to his or her prior state of well being.” To put the government in its prior state of well being means compensating it for the losses it sustained, which would not have occurred but for the wrongdoer’s act. Attorneys’ fees and investigators’ fees are not speculative items and can be measured with as much specificity as food stamps and welfare payments. The tangible aspect in this case is money and not the right to a republican form of government or the right to a fair trial before an impartial jury.

4 . We need not decide the ultimate reach of the VWPA restitution provision in cases where the defendant has put on persuasive evidence that, regardless of his or her conduct, the verdict would still have been overturned. We only hold that the reach of the VWPA restitution provision is sufficient to cover the facts presently before us.

5 . The court found, however, that the technician’s fees paid for removing film from the bank’s surveillance camera was "a direct cost of the robbery”, thus warranting restitution. See Kenney, 789 F.2d at 784.

6 . During Hand’s sentencing hearing, the following exchange occurred between the court and Hand’s counsel:

THE COURT: Have you and your client, Mr. Johnson, had an adequate time to review the terms of the presentence investigation report and do you or ... she take any exception to it?

MR. JOHNSON: Your Honor, we have reviewed the presentence report and there is only one minor exception that we take and that is that on page three it lists my client’s] husband’s age as 51, he is in fact 45 at this time.

THE COURT: Okay. I’ll accept that correction.

MR. JOHNSON: That is the only change that we would ask to be made.

United States v. Hand, No. 87-201, Transcript of Sentencing Proceeding at 2 (D.N.J. Apr. 8, 1988), reprinted in Appellant’s App. at 8.

7 . We find Hand’s argument regarding the New Jersey sentencing criteria uncompelling. This case involves a federal offense and, thus, the sentencing judge was constrained only by the federal guidelines in imposing a sentence.

8 . The statute provides that

[t]he court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.

18 U.S.C. § 3580(a) (1982), redesignated 18 U.S.C. § 3664(a) (Supp. Ill 1985) (eff. Nov. 1, 1987) (emphasis added).