United States v. Glen W. Marsh, (Two Cases)
932 F.2d 710
8th Cir.
1991
Check Treatment

*1 Before FAGG and HEANEY, Judges, and Senior Circuit Judge.

HEANEY, Judge. Senior Circuit pled guilty to three counts of Glen mail fraud in violation of 18 U.S.C. 1341. § The district court sentenced Marsh to years imprisonment and one-half and or- the victims dered him to million to denied a he defrauded. district court motion to reduce the amount of restitution. F.Supp. appeals 1361. Marsh this deni- addition, that the dis- al. he contends right process trict court violated his due fair

FACTS agent, Marsh As a successful real estate Begin- loyal clients. gained had numerous *2 7X1 hearing plight ning exploited to the of three of the vic- he this client base to purchase sentencing judge solicit investors for the of "Con- tims. The chronicled the Equity Funding Notes," impact tract which he ad- disastrous that Marsh's crime had producing yield on each of these victims. Marsh contends vertised as years. a 20% over five judicial inappropriate, Marsh informed the investors that that this recital was pooling money purchase proof he was their because there is no that Marsh's ac- actually contracts for deed in residential real estate tivities caused the deleterious ef- purchase by and that he could for deed at a 25% discount. From 1982 the contracts fects suffered cording Marsh, these victims. ac- he was sentenced on the basis of inaccurate information in violation $4 until Marsh sold million worth of Tucker, Equity Funding ap- of United States v. 404 U.S. the Contract proximately seventy-one Notes to 30 L.Ed.2d 592 investors. (1972), Burke, and Townsend v. 334 U.S. Marsh did not use the invested funds to 92 L.Ed. 1690 purchase Instead, real estate. he used the Rone, See also United States v. money personal to maintain a lavish life- (7th Cir.1984)(a "sentence must style. Resultantly, he mailed each be set aside where the defendant can dem- following of the investors the letter: onstrate that false information formed Dear Creditor: sentence"). of the basis for the Regretfully you we must inform that due agree While we with Marsh that he must to default in some of our receivables we be sentenced on the basis of accurate infor- timely payment(s) are unable to continue mation, we do not believe that the district your accounts with us. We are at- process rights. court violated his due tempting to resolve this situation and give the district court did not you will advise further. particular weight to the victims' statements government indicted Marsh in 1989 fixing Rather, of woe in the court referred to these statements in Marsh's sentence. on fifteen counts of mail fraud from his investment scheme. Marsh compare lifestyle order to of the vic- guilty to three counts of this indictment. Immediately tims with that of Marsh. af- One of these counts identified a victim chronicling ter the conditions of the three $75,000; whom Marsh defrauded of victims, the court commented: specified other two counts fraudulent many examples type There are involving $10,875 $21,000, transactions respectively. and just given people that I have their funds. who lost plea agreement express- ly provided may impose that "the court meantime, apparently you, While in the Marsh, living high Mr. were on the road the victims identified in the attachment to expensive clothes and chauffeured the indictment." The referenced attach- cars, fancy office, and the like. It ment identified investors who your seems to me that actions are shame- invested over million. The court or- disgraceful examples ful and of white- pay $8 dered Marsh to million in restitution crime, and, such, collar as must be treat- provisions under the of the Victim and Wit- type ed as of crime. Act, §~ ness Protection 3664, 18 U.S.C. 3663 and These comments demonstrate that the dis- and sentenced him to and one- purpose reviewing trict court's the condi- years imprisonment. half generally tion of the three victims was to plight contrast their with Marsh's fortune. DISCUSSION Drawing such an illustrative contrast was I. inappropriate. Accordingly, not we affirm argues sentencing imposed by the sentence improper court's reliance on and inaccurate II. process right information violated his due objects argues to fair Marsh next that the district sentencing court's order of restitution exceeds that district court's reference at his ability “regarding a court’s under VWPA sentencing statute. The by the authorized require an offender to Protection Act of 1982 to Victim to order other than those (VWPA) federal courts for acts authorizes at-, to make restitution to offense of conviction.” convicted defendants *3 In offenses. See 18 at 109 L.Ed.2d at 414. the victims of their 110 S.Ct. 3663(a). Supreme Recently, rulings the canvassing the circuit courts’ U.S.C. § “language issue, and struc- Supreme held that the the Court noted that: Court this ture the of Protection] [Victim that “in The Ninth Circuit has ruled to autho- Congress’ intent plain Act makes continuing involve a scheme cases which only for the restitution rize an award of power ‘it is within the of the to defraud specific conduct that is caused the loss require to restitution of court of conviction.” the basis of the offense up gain the entire illicit from amount to — -, States, Hughey v. United scheme, only specific even if some such a -, 109 L.Ed.2d guilty are the basis of the incidents ” light in argues that 413 Pomazi, plea.’ v. 851 in case of restitution his Hughey, the order (1988) (quoting F.2d 250 United damages specifical- limited to the should be Davies, 683 F.2d 1055 States pled in to which he ly alleged the counts 1982)). (CA7 guilty. theory, Marsh’s his offenses Under at U.S. at - n. Hughey, specific limited to the acts of conviction are 2,109 n. 2. Because n. L.Ed.2d at 415 1982 pled guilty, which involved to which he in its Supreme the Court included Pomazi Thus, $106,875. totaling accord- damages split authority, the in the reference to ing argument, his restitution to Marsh’s Hughey apply intended to to cases Court liability limited to that amount. should be Pomazi; words, ap in Hughey like government argues that because involving continuing schemes plies to cases fraud Marsh was convicted of a mail Therefore, ongoing, in an to defraud. even scheme, arising for losses he is accountable scheme, unitary the defendant can be held According scheme. from the entire only specific liable in restitution for the pleads government, where a defendant pleads guilty. or is found acts to which he scheme, the offense guilty to a mail fraud supports interpre- this The Ninth Circuit purposes of restitution of conviction for In Hughey. tation of United States v. scheme, includes the entire since the exist- Cir.1991), (9th 27385 that Sharp, 1991 WL an ence of the scheme is element overrule Hughey court ruled: “We read to Therefore, crime when a defendant itself. restitution in a wire Pomazi and limit pleads guilty specific to counts of mail specified in fraud scheme to the amount fraud, admitting liability he is for the en- guilty plea the was the count to which scheme, may tire and restitution be ordered 27385, at 1. In reach- made.” Id. 1991WL compensate all the of that as to victims decision, express- ing the Ninth Circuit this pre-dates scheme. law that Some case Hu- argument ly rejected government’s See, supports proposition. e.g., ghey Sharp’s resti- Hughey “that does not affect Vance, United States v. because one of the elements of tution order Cir.1989) (where (10th defendant underly- wire fraud is the existence of an pleaded guilty counts of to two multi-count ing at 3. scheme.” Id. 1991 WL indictment, properly bank fraud Sharp, because the defendant ordered for total loss to banks because only sixty-three count to two counts of a appropriately scheme was treated as a uni- indictment, only acts he could be liable offense). tary government attempts counts, charged in and not for the those distinguish Hughey from this case on scheme, though the entire million even $8.5 ground Hughey did not involve incorporated by refer- entire scheme was single, unitary losses from each count. Id. 1991 WL ence into disagree govern- scheme. We reasoning. at 3. ment’s restitution, it is ordering Supreme granted In terms Hughey, Court charged the crime is one split authority

certiorari resolve the irrelevant whether requiring underlying an scheme or one that require showing.

does not such a In either specific restitution is limited to the

conduct None- convictions.

theless, we affirm the district court’s resti-

tution award this case. plea agreement,

In his which was exe- decided, before Hughey

cuted was

specifically agreed that may “the court im-

pose

by the victims identified in the attachment *4 earlier, indictment.” As noted listed

attachment fraud vic-

tims, whose losses exceeded million.

Thus, the district conformity court acted in plea agreement when it ordered

restitution in the amount million. $3of We See also 608 S.W.2d 429. the order of affirm restitution on this basis.

CONCLUSION affirm the imposed

We sentence and the ordered

FAGG, Judge, concurring, Circuit

whom Judge, joins. join

I I and concur in the result

part II. Eugene BAINTER, Appellant,

David

Myrna TRICKEY, Appellee. E.

No. 89-2247.

Submitted Dec. May 3,