United States v. John Crim
665 F. App'x 144
| 3rd Cir. | 2016Background
- John Michael Crim was convicted in 2008 of conspiracy to defraud the United States and interference with tax administration; restitution of $17,242,806.57 was ordered jointly and severally with codefendants.
- On direct appeal this Court affirmed the conviction but vacated and remanded for resentencing because the district court improperly imposed a single concurrent term and failed to specify restitution payment schedule and consider economic circumstances.
- While the case was pending resentencing Congress enacted the Firearm Excise Tax Improvement Act of 2010 (FETIA), which permits the IRS to assess and collect criminal restitution owing to the United States as if it were a tax for orders entered after August 16, 2010.
- At resentencing the district court imposed consecutive terms and again ordered the $17.24 million restitution, setting an annual $100 payment during incarceration; this Court affirmed and described a challenge to FETIA as contingent and premature.
- After the IRS collected about $122,625.51, Crim moved under Federal Rule of Criminal Procedure 38(e)(2) to stay the restitution and to declare FETIA unconstitutional as applied to him (Ex Post Facto Clause claim).
- The district court denied the motion, holding Rule 38(e)(2) does not provide a mechanism to challenge the validity of a restitution order and that Crim produced no evidence the IRS had used FETIA’s collection powers against him. Crim appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fed. R. Crim. P. 38(e)(2) permits a defendant to challenge the legality of a restitution order | Crim: Rule 38(e)(2) authorizes post-appeal relief and thus provides a procedural vehicle to stay or challenge restitution enforced via FETIA | Government: Rule 38(e)(2) authorizes orders to ensure compliance, not collateral attacks on the validity of restitution orders | Court: Rule 38(e)(2) does not provide a mechanism to challenge the underlying legality of a restitution order; appeal affirmed |
| Whether Crim’s Ex Post Facto challenge to FETIA’s retrospective application is ripe via this motion | Crim: Retroactive application of FETIA to his restitution violates the Ex Post Facto Clause and warrants relief now because IRS collection has begun | Government: The Ex Post Facto challenge is contingent and premature absent concrete IRS enforcement action that invokes FETIA’s powers | Court: Court declined to reach the merits as Crim used an improper procedural route; the ex post facto claim remains unadjudicated because Rule 38(e)(2) is not a proper vehicle |
Key Cases Cited
- Peugh v. United States, 133 S. Ct. 2072 (2013) (definition of ex post facto principle for increased punishment analysis)
- United States v. Maury, 695 F.3d 227 (3d Cir. 2012) (standard of review for interpretation of Federal Rules of Criminal Procedure)
- United States v. Crim, [citation="553 F. App'x 170"] (3d Cir. 2014) (prior Crim appeal describing ex post facto challenge to FETIA as contingent and premature)
- United States v. Crim, [citation="451 F. App'x 196"] (3d Cir. 2011) (earlier appeal affirming conviction and vacating sentence for resentencing)