Lead Opinion
By the Court,
These consolidated appeals require us to decide whether district court judges possess the statutory authority to order a person convicted of violating the narcotics laws of this state to reimburse the arresting authorities for the outlay of “buy money,” the funds expended by police departments to obtain conclusive evidence of an offender’s guilt, either by imposing the requirement as part of the sentence or as a condition of probation.
We hold that the restitution portion of the sentencing statute does not accord the authority to order restitution of “buy money,” but that the broader language of the statute allowing for restitution as a condition of probation does accord such authority. We therefore vacate the restitution portion of the sentence imposed upon appellant Enoma Uyg Igbinovia (Igbinovia) and let stand the restitution probation conditions imposed upon appellants Leroy Roosevelt Mack (Mack) and Michael Vern Menzelli, Jr. (Menzelli).
On July 18, 1992, an undercover narcotics officer of the Las Vegas Metropolitan Police Department (Metro) purchased one-eighth of an ounce of marijuana from Igbinovia for $25. The next day Igbinovia sold the same officer $40 worth of marijuana, and on September 3, 1992, Igbinovia and a co-defendant sold one-quarter of an ounce of cocaine to an undercover Metro officer for $350. Igbinovia was charged with three counts of sale of a controlled substance, and one count of trafficking a controlled substance.
Pursuant to a plea bargain, Igbinovia pleaded guilty to one count of possession of a
On March 9, 1992, appellant Mack sold 5.3 grams of cocaine to an undercover officer of the North Las Vegas Police Department (the department). He was charged by information with trafficking a controlled substance. Mack pleaded guilty to the lesser charge of possession of a controlled substance with intent to sell, and was sentenced to three years in prison. The judge suspended the sentence in its entirety and placed Mack on probation “for an indeterminate period of time not to exceed five (5) years,” with special conditions, including the requirement that Mack pay $400 in restitution to the department.
On August 30, 1990, detective Jimmy Vaccaro (Vaccaro) went to appellant Menzelli’s home, where Vaccaro and Menzelli waited until a third man, Ricardo, arrived. Ricardo produced cocaine from his pocket and handed it to Menzelli, whereupon Menzelli turned it over to Vaccaro. Vaccaro asked Ricardo how much hе wanted for the cocaine, and Ricardo answered, “Whatever you and Mike [Menzelli] have worked out.” Vaccaro then paid $340 to Menzelli, who handed the money to Ricardo. Vaccaro left the premises without arresting either man. Menzelli was arrested later and charged with trafficking a controlled substance.
Menzelli pleaded guilty to a reduced charge of possession of a controlled substance, and was sentenced to three years in prison. The district court judge suspended the sentence in its entirety and placed Menzelli on probation “for an indeterminate period not to exceed four (4) years.” As one of several special conditions of probation, Menzelli was ordered to pay $170 restitution during the first year of probation, representing one-half of the “buy money” spent to purchase the cocaine. Each of the appellants now contest the restitution orders.
We first address appellant Igbinovia’s claim — that the district judge who sentenced him lacked statutory authority to order him, as a part of his sentence, to pay restitution to Metro for the money Metro expended in buying marijuana and cocaine from him. The statutory basis in Nevada for ordering restitution as part of a sentence is NRS 176.033, which provides, in relevant part:
Sentence of imprisonment required or permitted by statute: Definite period; restitution; modification of sentence.
1. If a sentence of imprisonment is required or permitted by statute, the court shall:
(a) Sentence the defendant to imprisonment for a definite period of time . . . ; and
(b) If restitution is appropriate, set an amount of rеstitution/or each victim of the offense and for expenses related to extradition ....
(Emphasis added.) The precise question, then, is whether Metro is a “victim” within the meaning of NRS 176.033.
The legislature did not define “victim” in NRS. 176.033 or elsewhere in the statutory scheme within which the provision falls. The legislature has defined “victim” in a wholly separate provision of the Nevada Revised Statutes. See NRS 213.005. That statute provides, in relevant part:
As used in NRS 213.010 to 213.100 [a subsection of the “Pardons and Paroles” chapter of the NRS], inclusive, unless the context otherwise requires:
2. “Victim” includes:
(a) A person against whom a crime has been committed;
(b) A person who has been injured or killed as a direct result of the commission of a crime; or
(c) The surviving spouse, parents or children of such a person.
In enacting NRS 176.033, the legislature did not cross-reference the definition of “victim” found in NRS 213.005, although it could have;
We find it useful to look to other state court decisions that have directly considered this issue. The overwhelming number of these courts have determined that police departments are not “victims” within the meaning of sentencing statutes allowing restitution to “victims of the offense” for which a defendant has been convicted. See, e.g., People v. Chaney,
In Chaney,
In Evans (Illinois),
While certainly we would be remiss were we to hold that unlawful delivery is a victimless crime, we would be blinking reality were we not to acknowledge that many, if not most, offenders are brought to justice through the efforts of undercover agents making buys with public monies. We will not, however, strain the commonly accepted understanding of the word “victim” so as to include the public drug enforcement agency ... in the case before us. Where public monies are expended in the pursuit of solving crimes, the expenditure is part of the investigating agency’s normal operating costs. The governmental entity conducting an investigation is not therefore considered a “victim” to the extent that public monies are so expended.
Id. (citing Evans v. Garrison,
In Meacham,
Finally, in U.S. v. Gibbens, No. 93-2203,
It defies common usage to envision an entity that planned and provoked a crime as a victim in the same sense that a passive sufferer of harm is a victim, notwithstanding that the entity may have experienced loss.
Id. at *6. The court again emphasized that the word “victim” has common notions of passivity when it stated that “[a] victim is commonly considered to be a passive sufferer of harm, that is, someone who is ‘tricked, duped, or subjected to hardship. . . Id. (quoting Webster’s Third New International Dictionary 2550 (1981)).
We are persuaded that the word “victim” has commonly-understood notions of passivity, where the harm or loss suffered is generally unexpected and occurs without the voluntary participation of the person suffering the harm or loss. Although it is not without any foundation in logic that the government might fall under the wording of subsection 2(b) of NRS 213.005 (defining “victim” as one “who has been injured ... as a direct result of the commission of a crime”), it is a stretch for this court to hold, without incorporation of that provision into the sentencing statute and without more clearly defined markers indicating such a result, that it is appropriate to conclude that a police department that expends money to secure evidence is a “victim” of crime.
Research has uncovered very few decisions holding that police departments are “victims” within the meaning of sentencing statutes allowing restitution “to victims.” Therefore, very few courts have held that police departments are entitled, as a part of a defendant’s criminal sentence, to receive restitution of “buy money” from a criminal defendant who took the money in a drug transaction and was later convicted оf a crime for engaging in that transaction. See State v. Pettit,
Although the definition of “victim” in Pettit is one of several reasonable interpretations, we note that it was expressly provided for as a statutory definition. In addition, the court failed to address the primary issue that has concerned other courts — the fact that the police departments have actively and voluntarily participated in the conduct and are not passive recipients of harm or loss as the term “victim” commonly connotes.
In the absence of clear legislative markers leading us to such a broad definition, we cannot simply choose a definition of “victim” such as that in Pettit as the appropriate measure in this case. In light of the well-reasoned decisions cited above, which discussed the “passivity” element of victim status and noted the active role played by police departments in securing evidence as a normal operating expense, we cannot choose the construction which ignores these factors in favor of police departments who expend money to obtain evidence leading to conviction. We therefore vacate the restitution portion of Igbinovia’s sentence.
In light of the above, we need not address the fact that the district court judge overlooked that, even were he authorized to order restitution to Metro under this statute, he would still be authorized to order restitution to Metro only for the partiсular offense to which Igbinovia had pleaded guilty. See Erickson v. State,
We next address the claims of Mack and Menzelli that the district court judges who ordered that they pay restitution as conditions of probation erred. The power to impose conditions on probation must be authorized by the legislature. Nev. Const, art. 5, § 14; Van Dorn v. Warden,
The general statutory grant of authority to fashion and impose probation conditions in Nevada is broad. NRS 176.185 provides, in relevant part:
Suspension of execution of sentence by court ....
1. Whenever any person has been found guilty in a district court of a crime ... the court [except in certain enumerated crimes] may by its order suspend the execution of the sentence imposed and grant probation to the convicted person as the judge thereof deems advisable.
(Emphasis added.) NRS 176.1853 also provides, in relevant part:
Terms and conditions of probation . . .
1. In issuing an order granting probation, the court may fix the terms and conditions thereof, including a requirement for restitution ....
(Emphasis added.) Finally, NRS 176.205 provides, in relevant part that, “By order duly entered, the court may impose . . . any condition of probation or suspension of sentence.” (Emphasis added.) These three emphasized provisions have been held to accord to district court judges a broad power to
In the instant case, however, a more particular statute also applies. NRS 176.189 provides, in relevant part:
Restitution as condition of probation or suspension of sentence.
1. The court shall order as a condition of probation or suspension of sentence, in appropriate circumstances, that the defendant make full or partial restitution to the person or persons named in the order, at the times and in the amounts specified in the order unless the court finds that restitution is impracticable. Such an order may require payments for medical or psychological treatment of any person whom the defendant has injured.
2. All money received by the division for restitution for:
(a) One victim may; and
(b) More than one victim must,
be deposited with the state treasurer for credit to the restitution trust fund. All payments from the fund must be paid as other claims against the state are paid.3
(Emphasis added.) In this statute, the legislature chose to accord broad authority to the district court judge to order restitution not only to “victims,” but to any “person or persons named in the order.”
It has been noted that the statutory provisions of the probation scheme must be strictly construed. See, e.g., Van Dorn,
As noted, the legislature has provided a framework for imposing restitution as a condition of probation; we hold that the district judges in the instant cases did not go outside the relevant provision. The district judges’ orders were authorized by NRS 176.189, and they did not rely on their general authority tо order restitution in a manner that would not also have been authorized by NRS 176.189. In addition, NRS 176.189 necessarily vests discretion in a district judge, “in appropriate circumstances,” to determine which “person or persons” are entitled to restitution. Discretionary powers of the district court accorded by a statutory grant of authority must be interpreted liberally. See Creps,
We note that our conclusion is in line with the conclusions of a substantial number of other state courts that have interpreted their state probation condition provisions to allow the restitution of drug “buy money” to police departments. See, e.g., Schwing v. State,
In conclusion, we vacate the portion of appellant Igbinovia’s sentence requiring restitution, because the government is not a
Notes
We note that the legislature did cross-reference the statutory definition of “victim” found in NRS 213.005 when it enacted NRS 176.015, which allows for “victim-impact” testimony before a convicted criminal defendant is sentenced. The definition has therefore been incorporated into NRS 176.015, for purposes of determining which “victim-impact” testimony is permissible.
U.S. v. Gibbens, No. 93-2203,
This court has stated previоusly, in dicta, that NRS 176.189(1) was “directed to the restoration of money or property to the victim of the offense of which the defendant is found guilty.” See Korby v. State,
The issue before this court in Korby was whether the district court judge possessed the authority to order that the defendant pay the costs of a trial in which the jury was unable to reach a verdict, when the same defendant later entered a guilty plea on a reduced charge to avoid retrial. The judge attempted to impose the restitution order as a condition of probation on the reduced charge to which the defendant had pleaded guilty. This court noted that “[i]t is evident that [NRS 176.189(1)] bears [no] relevance to the issue before us.” Id. The court ultimately held, in Korby, that a defendant simply cannot be made to pay for the expenses of a trial аt which he was not convicted. Id.
We have not overlooked the fact that the legislature used the word “victim” in subsection two of the statute. See NRS 176.189(2). That provision authorizes the judge, if the “person . . . named in the order” is a “victim,” to order that the restitution sum be deposited with the state treasurer for credit to the restitution fund. That provision also requires the judge, if the order provides for restitution to more than one victim, to order that the sum be deposited with the state treasurer for credit to the restitution fund. This provision is not inconsistent with subsection one of the statute, which allows for restitution to a class of persons larger than those possessing “victim” status. See 176.189(1). Subsection two simply provides that if the “person or persons named in the order” have “victim” status, then the judge may or must follow a particular procedure for providing for disbursement of the rеstitution sum. We conclude that paragraph two speaks only to the procedure for disbursing to victims the restitution funds ordered and that it does not limit the class of persons to whom restitution may properly be ordered. A similar result was reached in State v. Connelly,
In Connelly, the court wrote:
Connelly reads [the relevant provision] too restrictively. The statute does not state that the only time a probationer can be required to pay out funds as a consequence of his or her criminal activity is to provide restitution to a crime victim. It simply requires that if there is an ascertainable victim, he or she must be compensated under the guidelines therein stated.
Although we realize that the restitution of drug “buy money” is not an expense for medical or psychological treatment, we cite this provision to demonstrate that the legislature specifically did not require that the person to whom restitution may be ordered as a condition of probation have “victim” status.
We have discovered only one case in which an appellate court vacated the imposition by a trial court — as a condition of probation (actually “supervised release”) — a requirement that the defendant pay restitution for drug “buy money.” See U.S. v. Gall,
In Daddato, Judge Posner, writing for the panel, relied on a “catch-all” provision of the federal supervised release statute to sanction the practice, and he noted that the defendant was not sentenced under the Victim and Witness Protection Act (VWPA), but under the supervised-release statute, which Posner considered independent from the VWPA. The Sixth Circuit panel that wrote Gall considered the VWPA to have been incorporated into the supervised release statute by reference. See Gall,
Above all, this split emphasizes that resolution of this issue is a matter of statutory interpretation. Nevada’s statute is significantly more straightforward and comprehensible than the federal statute at issue in the reported federal cases. As a result, the federal cases are helpful but not persuasive.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority’s rulings in the Mack and Menzelli cases recognizing the right of a sentencing court to require the restitution of drug “buy money” expended by police agents, as a condition of probation. I dissent from the majority’s ruling in Igbinovia reversing the district court’s imposition of restitution of drug buy money to the police department as part of Igbinovia’s sentence. In accordance with the foregoing, further comments in this dissent will relate strictly to the Igbinovia case.
If I were to place a label on this case, it would be the “Straining at a Gnat and Swallowing a Camel” case. It is, I suggest, a paradigm which could have inspired the Chinese Proverb “[gjoing to law is losing a cow for the sake of a cat,” and could have prompted Macklin to opine that “[t]he law is a sort of hocus-pocus science that smiles in your face while it picks your poсket; and the glorious uncertainty of it is of more use to the professors than the justice of it.”
In citing the above quotations, I mean no disrespect for my colleagues in the majority or the other courts who have engaged in the art of analytical jurisprudence in which they have been trained. Indeed, both lawyers and judges are attuned to careful distinctions, semantical exercises, and sophisticated interpretations. Unfortunately, we frequently do so at the expense of reason and good common sense. Coke has said that “[r]eason is the life of the law; nay, the common law itself is nothing else but reason.” Finally, Hill has stated that “[l]aw that shocks equity is reason’s murder.”
Before joining the world of semantics and addressing the accepted meaning of the word “victim” in response to my colleagues in the majority, I am unable to resist a few additional generalities that are, I suggest, endowed with reason and common sense. Our federal, state, and local governments in this republic are all governments “of the people, by the people and for the people.” Our law enforcement agencies are part of government and, by extension, part of the people for whose benefit government exists and by whom the government is financially supported. Moreover, I submit as an irrefutable truth that when those who prey on society by selling illicit drugs can be apprehended only through the undercover use of “buy money,” and the criminals from whom the drugs are “purchased” are permitted to keep the money, all honest, taxpaying citizens are victims. Indeed, our taxpayers are victims in at least two ways: the loss of thеir money, and being forced by the courts to permit the seller of the drugs to profit from the transaction. In the latter sense, the taxpayers are actually coerced into subsidizing the criminal purveyors of drugs! Moreover, the law itself is a victim, for it is forced to forfeit the well-established principle of law that a wrongdoer will not be allowed to profit from his or her own wrongdoing. I seriously doubt that any of the honest citizens of our state would agree that it is either just or reasonable that persons engaged in selling illicit drugs should be allowed to keep money provided by police officers in order to secure their arrest and conviction. If Coke is right in suggesting that the life of the law is reason and that the common law is nothing but reason, then it appears that both have been undermined by today’s decision.
Since reason аnd justice are obviously an insufficient basis for addressing what appears to me to be a rather simple issue, I will engage my colleagues in the world of semantics
Citing NRS 176.033,
In citing to cases from other jurisdictions, the majority relies primarily on cases that have held that investigatory agencies are not victims when they expend public funds as part of their normal operating costs. See U.S. v. Meacham,
Reliance upon Garrison is misplaced, however, because the ruling did not involve drug “buy money,” but rather reimbursing the drug division for the expenses it incurred in investigating charges and obtaining proof which led to guilty pleas. Garrison,
Neither the majority nor the cases cited by the majority attempt to distinguish between “expenses incurred in investigating charges” implicated in Garrison, and the “buy money” involved in the instant case. A major distinction between mere operating costs and “buy money” is that the criminal does not profit from the former. A police officer in Durham, North Carolina, stated the obvious on the point when he said:
In the days of moonshine investigations, the sheriff would go out and buy a little liquor, arrest the buy right then and get his money back. But if you do that with drugs, you only end up with the little guy, not the big distributors .... And with cocaine costing about $3,000 an ounce, we may put out $40,000 before we even make an arrest.
Legislator Wants Seized. Property to Aid Law Enforcement Agencies, Durham Morning Herald, July 6, 1985, at 6A.
Since Garrison did not refer to “buy money,” it is likely that the reference to “normal operating costs” included only the ordinary
Moreover, there is irony in the majority rejecting for statutory reasons, several of the cases that are in opposition to its ruling, while embracing Chaney and People v. Evans, which derive their holdings from the statute-based ruling of Garrison. Thus, the majority fails to differentiate between a statute exempting “normal operating costs” from restitutory eligibility, and NRS 176.033, which contains no constraints on restitution other than that which is “appropriate.” Clearly, “buy money” is not a normal operating cost because, left in the hands of the criminals, it becomes a source of promoting crime rather than deterring it.
I find it both interesting and appalling that the majority rеaches for a definition of “victim” that rewards the criminal and punishes the taxpayers who furnish the “buy money” to our law enforcement agencies. Equally troubling, the majority finds persuasive the “commonly-understood notions of passivity” attached to the word “victim,” “where the harm or loss suffered is generally unexpected and occurs without the voluntary participation of the person suffering the harm or loss.” Where does this “commonly understood” notion of “passivity” come from? I suggest that a search of dictionary definitions of the term reveals a far more expansive connotation of the term than one who passively suffers harm inflicted by another. A victim who is defrauded into parting with his or her money actively participates, albeit unwittingly, in the loss of his or her funds. One who is provoked into a fight may nevertheless become the victim of the other’s violence despite being a participant in the fray. In short, I find little basis in reason or human experience to limit the term “victim” to those who suffer loss or injury “passively.”
More to the point, since Metro was merely an extension of the people who provided the “buy money,” there would be a combination of passivity (in the unaware taxpayer-victims whose money was being used) and the more active participation of the police in providing the means for the criminal to commit a monitored crime. Moreover, it defies reason to assume that the police are engaging in undercover operations involving “buy money” with the expectancy that the money somehow lawfully becomes the property of the criminals and will therefore not be the subject of an ordеr of restitution upon conviction and sentencing. Can it seriously be argued that it is a normal operating cost for taxpayers to have their “buy money” consumed for the simultaneous punishment and financial benefit of the criminals the money is used to apprehend and bring to justice? The majority quotes from U.S. v. Gibbens,
In the first place, if the “entity” actually planned and provoked the crime, I suppose
Fortunately, other courts without benefit of legislative definition have viewed the meaning of the word “victim” in a more reasonable light. In People v. Narron,
Perhaps most perplexing of all, the majority purports to interpret the meaning of the term “victim” in accordance with the public policy underlying NRS 176.033. My review of the majority opinion has failed to reveal any semblance of consideration for or deference to public policy. I suggest that they would be hard-pressed to do so. Does anyone seriously think that legislators, representing their respective constituencies, would expect public approval of a policy that would apply tax revenues to the financial bеnefit of criminals by allowing them to keep “buy money” that happened to be used in effectuating their arrest?
In State v. Connelly,
With due respect for my colleagues in the majority, I fail to understand how their interpretation in favor of public immolation advances any worthy or decent cause or policy. They supply a meaning to “victim” that enriches criminals at the expense of the taxpayers, and actually provides the convicted drug dealers with added resources to further prey on our citizens and their children. To compound the injury, they force the taxpayer to underwrite the drug industry in every case where “buy money” is used to effectuate an arrest and a prison sentence is imposed. In attempting to divine a reason — any reason — for such a ruling, the only one that surfaces is the absurdity that perhaps it lessens the sting of the criminal’s incarceration, also at the taxpayer’s expense.
In pertinent part, NRS 176.033 provides:
Sentence of imprisonment required or permitted by statute: Definite period; restitution; modification of sentence.
1. If a sentence of imprisonment is required or permitted by statute, the court shall:
(a) Sentence the defendant to imprisonment for a definite period of time . . . ; and
(b) If restitution is appropriate, set an amount of restitution for each victim of the offense and for expenses related to extradition ....
I note in passing my agreement with the majority’s conclusion that Igbinovia may not be required to pay restitution for offenses concerning which he has neither pleaded guilty, nor been found guilty, nor despite the lack of conviction, has otherwise agreed to provide restitution.