UNITED STATES of America v. Robert Allen EDWARDS a/k/a Fidel Salim a/k/a James F. Winter, III a/k/a Charles King a/k/a Donald W. Coleman, Robert Allen Edwards, Appellant.
No. 98-1055
United States Court of Appeals, Third Circuit.
Decided Nov. 27, 1998.
Argued Under Third Circuit LAR 34.1(a) Oct. 8, 1998.
The judgment of the district court is reversed and the case is remanded to the district court with instructions to grant petitioner‘s writ.
MESKILL, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority‘s opinion to the extent that it concludes that the conviction of Jackson for both robbery in the first degree and criminal use of a firearm in the first degree runs afoul of the Double Jeopardy Clause.
I dissent, however, from the majority‘s disposition of the case. I believe that before granting the writ we should remand the case and instruct the district court to offer Jackson‘s appellate counsel an opportunity to explain her actions. Doing so would comport with the preferred procedure we enunciated in United States v. Dukes, 727 F.2d 34, 41 n. 6 (2d Cir.1984), and recently reaffirmed in Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.1998) (per curiam). In short, I believe very strongly that a lawyer‘s interest in his or her professional reputation is great enough to justify affording that lawyer an opportunity to be heard before his or her performance is branded “ineffective.”
I agree that no good explanation readily springs to mind for the failure to raise the double jeopardy argument on direct appeal; it nonetheless bespeaks judicial arrogance to assume that counsel‘s failure is indefensible without first offering her the opportunity to explain her failure to raise the issue. It just is not fair to the state court appellate counsel who is not involved in this petition and will have no opportunity to defend herself. I believe that the writ should issue only after appellate counsel has been given the opportunity to explain her conduct and has failed to show that her conduct was reasonable under the circumstances and not ineffective representation.
Michael R. Stiles, United States Attorney, Walter S. Batty, Assistant United States Attorney, Chief of Appeals, Joseph Dominguez (Argued), Assistant United States Attorney, Philadelphia, PA, for Appellee.
Before: McKEE and RENDELL, Circuit Judges, DEBEVOISE, District Judge.*
OPINION OF THE COURT
RENDELL, Circuit Judge:
In this appeal, we are asked to determine whether the Victim and Witness Protection Act (“VWPA“) or the Mandatory Victims Restitution Act (“MVRA“) applies to the imposition of restitution in sentencing a defendant who committed his offenses prior to the effective date of the statute but is convicted on or after its effective date. The District Court found that although Edwards had no present ability to pay restitution, full restitution should be imposed under the MVRA. Edwards timely appealed to this court. Both sides now agree that the District Court incorrectly applied the MVRA to Edwards, and that the Victim and Witness Protection Act (VWPA) should have been applied.1 We hold that the application of the MVRA to Edwards constitutes a violation of the ex post facto prohibition, and we accordingly reverse and remand for a determination of whether restitution is appropriate for Edwards under the VWPA.
* Honorable Dickinson Debevoise, United States Senior District Court Judge for the District of New Jersey, sitting by designation.
I. Factual Background
Between December of 1992 and October of 1993, Edwards was involved in various schemes involving counterfeit checks, forged commercial checks, and stolen travelers’ checks. PSI ¶ 11. Edwards was sentenced on December 23, 1997, after pleading guilty to one count of conspiracy, one count of bank fraud, seven counts of money laundering, and one count of criminal forfeiture. Potential monetary penalties included a fine range of $12,500 to $5,000,000, restitution of $418,397.15, and a special assessment of $500. PSI ¶¶ 77, 81. The probation office‘s review of Edwards‘s liabilities and assets indicated that he had children to support, did not own property or appear to have any assets of note, and had a total liability of $92,854 of debts owed to credit card companies and banks. PSI ¶¶ 61-68.
At sentencing, defense counsel argued that Edwards did not have the ability to pay restitution, while the government contended that restitution was mandatory for his offenses under the MVRA. The district judge found that although the defendant did not have the present ability to pay restitution, the MVRA required restitution and ordered full restitution in the amount of $418,397.15. (A. at 14, 16, 22).2 This court has jurisdiction
II. The MVRA and the VWPA
In 1996, Congress passed the MVRA, or “Mandatory Victims Restitution Act of 1996,” Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, codified in relevant part at
The prior restitution statute, the Victim and Witness Protection Act, or “VWPA,” requires the court to consider the economic circumstances of the defendant prior to ordering restitution. In this Circuit, a District Court has to make certain factual findings before ordering restitution under the VWPA: 1) the amount of the loss sustained by the victims; 2) the defendant‘s ability to pay that loss; and 3) how the amount of restitution imposed relates to any loss caused by the conduct underlying the offense(s) at issue. See Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994). Under the VWPA, an indigent defendant can be made to pay restitution, but the court must tailor its findings to a defendant‘s potential assets or earning capacity. Id.
Neither side contests the fact that Edwards‘s crimes fall under
III. Ex Post Facto Analysis
To fall within the ex post facto prohibition, a law must be 1) retrospective, that is, it must apply to events occurring before its enactment; and 2) it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime. See Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997). The MVRA would be retrospective as applied to Edwards, and it disadvantages him by holding him accountable for the full amount of restitution, when under the VWPA, he would, in all likelihood, not be held accountable for the full amount. The question then is whether the MVRA altered the definition of criminal conduct or increased the punishment for Edwards‘s crimes. The MVRA did not alter the definition of Edwards‘s criminal conduct, but it did alter his fiscal responsibility for its consequences, and we must determine whether, in so doing, it increased the punishment for his crimes.
Most of the Courts of Appeals that have considered this question have found that the retrospective application of the MVRA violates the Ex Post Facto Clause because restitution imposed as part of a defendant‘s sentence is criminal punishment, not a civil sanction, and the shift from discretionary to mandatory restitution increases the punishment meted out to a particular defendant. See United States v. Siegel, 153 F.3d 1256, 1259-1261 (11th Cir.1998); United States v. Bapack, 129 F.3d 1320, 1327 n. 13 (D.C.Cir.1997); United States v. Williams, 128 F.3d 1239, 1241 (8th Cir.1997); United States v. Baggett, et al., 125 F.3d 1319, 1322 (9th Cir.1997); United States v. Thompson, 113 F.3d 13, 14 n. 1 (2d Cir.1997); but see United States v. Newman, 144 F.3d 531 (7th Cir.1998).
In Williams, the Court of Appeals for the Eighth Circuit viewed the express language of the MVRA as making clear that mandatory restitution was a “penalty,” and hence, punishment for the purposes of ex post facto analysis. 128 F.3d at 1241.3 In Siegel, the Court of Appeals for the Eleventh Circuit focused on the language of
Of the Circuits that have considered this question, only the Court of Appeals for the Seventh Circuit, in United States v. Newman, has determined that the retroactive imposition of restitution under the MVRA does not violate the Ex Post Facto Clause. In Newman, the court conceded that the retroactive application of the MVRA would disadvantage a defendant whose conduct occurred prior to its effective date, but the court stated that since restitution was essentially a civil penalty, and not punishment, the ex post facto prohibition did not apply. See 144 F.3d at 538.5 In so finding, the Newman court first looked to the historical character of restitution as an equitable device, and opined that restitution serves more as a form of civil penalty, a court must then inquire whether the statutory scheme was so punitive in either purpose or effect so as to transform what was clearly intended as a civil penalty into a criminal penalty. Id. In determining whether a statutory scheme could be so transformed, the Court set forth a multifactor analysis, and emphasized that the factors had to be considered in relation to the face of the statute in question and that only “the clearest proof” will suffice to override legislative intent. Id.
Our Circuit has used a somewhat different formulation from that set forth in Hudson, namely, that a measure must pass a three-prong test: 1) actual purpose; 2) objective purpose; and 3) effect, to constitute nonpunishment. See Artway v. Attorney General, 81 F.3d 1235, 1263 (3d Cir.1996). If the legislature intends a particular measure to be “punishment,” or if retribution was one of its actual purposes, then it must fail constitutional scrutiny; if, however, the “‘restriction of the individual comes about as a relevant incident to a regulation,‘” the measure must be further analyzed. See id. The continued viability of Artway is arguably in doubt in the wake of recent Supreme Court precedent, but we need not reach the question here in light of the relative clarity of both the statutory language and legislative purpose of the MVRA. See, e.g., Hudson, at — & n. 4, 118 S.Ct. at 493 & n. 4; E.B. v. Verniero, 119 F.3d 1077, 1093-94 (3d Cir.1997).
In addition to surveying the historical characteristics of restitution as a remedy, the Newman court also noted that it had observed “the non-punitive character of restitution in prior cases.” Id. at 538-39 (citing cases). It did note, however, that “our view of restitution is not universally shared.” Id. at 539 n. 7 (citing cases, including United States v. Sleight, 808 F.2d 1012, 1020 (3d Cir.1987)). The Newman court also looked to the statutory language of the MVRA and took issue with the Williams court‘s reading of the plain language of the MVRA; instead, the court found the MVRA‘s statutory scheme to be ambiguous as to the “criminal” or “civil” nature of the penalty assessed under
We find that the majority view of the Courts of Appeal is the better view. Both the statutory scheme and the legislative history of the MVRA point toward a determination that restitution should be considered a form of punishment under the statute.
Further, this finding is consistent with our precedents stating views regarding restitution for criminal defendants. We previously have indicated that restitution is a form of criminal penalty. See United States v. Sleight, 808 F.2d 1012, 1020 (3d Cir.1987) (“While one purpose of restitution under the Federal Probation Act is to make the victim whole, restitution ... is imposed as a part of sentencing and remains inherently a criminal penalty.“); United States v. Palma, 760 F.2d 475, 478-79 (3d Cir.1985) (finding that restitution imposed under the VWPA is a criminal penalty, and distinguishing its imposition under the VWPA from a civil proceeding in which restitution is imposed).6 We have also noted that while criminal restitution resembles a civil remedy and has compensatory as well as punitive aspects, neither these resemblances to civil judgments, nor the compensatory purposes of criminal restitution, detract from its status as a form of criminal penalty when imposed as an integral part of sentencing. See United States v. Woods, 986 F.2d 669, 680-81 (3d Cir.1993); United States v. Kress, 944 F.2d 155, 157-59 (3d Cir.1991); United States v. Pollak, 844 F.2d 145, 152-53 (3d Cir.1988); see also United States v. Carrara, 49 F.3d 105, 108 (3d Cir.1995) (discussing the historical character and purposes of restitution in criminal law); Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994) (describing the compensatory purposes of restitution under the VWPA).
Based on the foregoing, we find that under the MVRA, restitution is punishment, and that the retrospective application of that punishment to Edwards under the facts of this case is a violation of the Ex Post Facto Clause and plain error.7 Accordingly, we will reverse the imposition of mandatory restitution and remand for the District Court to make the appropriate factual findings and determination of restitution under the VWPA for Edwards.