United States v. Johnson, 145 F. Supp. 3d 862

Background

Barbara Johnson pled guilty to embezzling $76,400 from her bank (offenses dated 1992–1996) and was sentenced in July 1997 to imprisonment and ordered to pay restitution of $76,400.
The plea agreement requested restitution but did not mention interest; the PSR noted the bank had reimbursed a customer $1,857.59 for lost interest and requested that interest be ordered.
At sentencing the court ordered $76,400 restitution, did not award interest, and waived a fine for inability to pay; judgment was entered on VWPA-era form (silent on MVRA interest).
After release the government garnished Johnson’s wages: principal has been paid in full, but the government continued garnishment claiming >$45,000 in accrued interest under the MVRA.
Johnson moved for clarification whether the restitution order included interest; she argued the court did not order interest and government cannot collect it.
The government argued the MVRA applies (sentencing after April 24, 1996) and that interest is mandatory unless waived; it also raised jurisdictional and Ex Post Facto defenses to Johnson’s position.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court’s restitution order included interest	Johnson: court did not order interest; interest cannot be collected	Government: MVRA applies to sentencing after 4/24/1996, so interest is payable unless waived	Court: Clarified it did not include interest; interest not collectible under this order
Whether MVRA’s interest requirement applies to Johnson (Ex Post Facto)	Johnson: retroactive application increases punishment for pre‑MVRA conduct in violation of Ex Post Facto Clause	Government: part of the crime occurred after MVRA effective date, so MVRA may apply	Court: Applying MVRA interest here would violate Ex Post Facto Clause because embezzlement is not a continuing offense and Johnson lacked fair notice
Whether embezzlement under 18 U.S.C. § 656 is a continuing offense	Johnson: not continuing; discrete acts occurred pre‑MVRA so statute shouldn’t be applied retroactively	Government: crime spanned MVRA effective date; MVRA can apply	Court: Embezzlement is not inherently continuing here (discrete acts), so doctrine does not permit MVRA’s retroactive application
Whether court had implicitly waived interest under VWPA-era sentencing	Johnson: sentencing did not impose interest and used VWPA framework that required consideration of ability to pay	Government: form changes and MVRA provisions may control; court lacked jurisdiction to alter order	Court: Sentencing did not apply MVRA; interest was not imposed; government must refund any overpayments

Key Cases Cited

United States v. Williams, 128 F.3d 1239 (8th Cir. 1997) (MVRA applies to post‑effective convictions; restitution under MVRA treated as punishment for ex post facto analysis)
Toussie v. United States, 397 U.S. 112 (U.S. 1970) (continuing‑offense doctrine is narrowly applied; offense must clearly contemplate prolonged conduct)
Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (ex post facto analysis focuses on retrospectivity and disadvantage to offender; fair notice principle)
Lynce v. Mathis, 519 U.S. 433 (U.S. 1997) (retroactive increases in punishment can violate Ex Post Facto Clause)
United States v. Cooper, 63 F.3d 761 (8th Cir. 1995) (grouping/relevant conduct and "one‑book" rules may provide fair‑warning in some multi‑count contexts)
United States v. Yashar, 166 F.3d 873 (7th Cir. 1999) (embezzlement generally not a continuing offense for statute‑of‑limitations purposes)
United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (certain recurring automatic embezzlement schemes may be treated as continuing offenses)
United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987) (larceny/embezzlement completes on each taking; contrasting continuing offenses such as conspiracy)
United States v. Crawford, 115 F.3d 1397 (8th Cir. 1997) (distinguishes compensatory restitution schemes from punitive restitution for ex post facto analysis)
United States v. Schulte, 264 F.3d 656 (6th Cir. 2001) (retroactive application of MVRA to pre‑enactment conduct violates Ex Post Facto Clause)