United States v. Patricia Hand

HIGGINBOTHAM, Before MANSMANN GREENBERG, Judges. Circuit THE OF OPINION COURT JR., HIGGINBOTHAM, A. LEON Circuit Judge.

Appellant pleaded guilty count of one contempt of court violation of 18 U.S.C. (1982). appeals judg- now She her, ordering ment of court as a the district special probation, pay resti- condition of tution. We will affirm decision of district court.

I. 11, 1987, appellant, February On Patricia Hand, juror was chosen to serve as a Militello, United States v. trial involving multiple charged defendants with Among narcotics the seven co- violations. George Pepe, who defendants tried was conspiracy had to distrib- been indicted of 21 U.S.C. ute cocaine violation Appellee’s 841(a)(1), (1982).1 subsequent trial, In a See against testified §§ Pepe, charged Brief at 5. who was jury tamper- ing justice and obstruction of in contraven- jury testimony, the six weeks of After (1982). tion of 18 U.S.C. Pepe on March the case for deliberation received convicted of charges these and sentenced deliberation, 27,1987. During which lasted $5,000 fine year imprisonment. and one 3, 1987, Pepe had April Hand and until Pepe gave Hand impermissible contact: Hand was later sentenced to a six month flowers, or they exchanged two three term, jail suspended, three of were which notes, Pepe telephoned Hand twice years probation twenty- two and assessed jury returned verdicts her residence. The special pro condition of five dollars. As a co-defendants, against found guilty of five bation, however, Hand was ordered to respect guilty, not and deadlocked with one $46,850 authority in restitution under jury Pepe was 11 to 1 Pepe. to The vote on the and Witness Protection Victim Act of Hand was the sole in favor conviction. (“VWPA” Act”), or “the 18 U.S.C. exception. (1982), redesignated §§ brought to the atten- Hand’s conduct was 1985) (eff. (Supp. U.S.C. III §§ co-defend- tion of the trial when five 1, 1987).2 Nov. See United States v. trial, claiming motions for a ants filed new Hand, Judgment and Proba process they that had been denied due be- (D.N.J. 8, 1988) Apr. reprinted tion Order the Hand and cause of contacts between Appellant’s App. at 5. This restitution Pepe. granted The district court an eviden- represented resulting losses from Hand’s However, tiary hearing on their motions. that were the offense sustained pled guilty of these co-defendants two Office, Attorney’s Drug En motions, charges, their lesser and withdrew (“DEA”), Agency forcement and the United hearing. The court then vacat- before Service, States Marshal’s calculated as fol remaining against ed the verdicts three (1) $14,500, approximately lows: which was evidence, hearing co-defendants after but one-sixth the annual salaries of the two they pled guilty charges prior lesser also Attorneys prosecuted Assistant U.S. who to commencement of a new trial. More- the Militello case for seven weeks of trial over, Pepe, who had filed motion for (2) preparation; and two weeks of trial mistrial, acquittal his after withdrew $12,000,which was the same fraction charges pled guilty motion and to lesser agents assigned salaries of the two DEA involving original his offense. case; (3) $20,000 in travel costs and conduct, lodging Attorneys pleaded As a result of her Hand the U.S. and D.E.A. (4) agents; and guilty contempt of court in violation of witness fees and $350 (1982). agreed expenses paid by travel 18 U.S.C. 401 She also U.S. Marshal § cooperate investigation prose- Appellee’s Service. Brief at 8. See Hand appeals judgments from the of conviction charges against Pepe. cution of additional 1. Eleven (A) individuals had been indicted in this property return the to the owner of the persons pleaded case. Three guilty of these property er; designated by or someone the own- prior opted pretrial to trial and one other for a or program diversion (B) that resulted in dismissal of property if return of subpara- charges against him. (A) graph impossible, impractical, is or inade- quate, pay equal an greater amount pertinent part provides: 2. Section 3579 in of— (i) (a)(1) court, property the value of the on the date of The when a defend- loss, destruction, damage, (ii) or ant convicted of an offense under this title ..., order, property value of the may on the date of sentenc- any addition to or in lieu of ing, (as less the value penalty law, property of the date the other authorized that the de- returned) any part is property of the any fendant make restitution to victim of the returned.... offense.... 3579(a)(1), (b)(1) (1982), 18 U.S.C. redesigna- (b) may require order that such de- 3663(a)(1), (b)(1) ted 18 U.S.C. (Supp. Ill fendant— 1985) (eff. 1, 1987). (1) Nov. resulting case of an offense damage to or loss or destruction of of a victim of the offense— only Unfortunately, the dissent imposed against coupons). her and sentence not, Attorney’s how of the “U.S. Office” as speaks restitution. We are issue of part imposition though it not of a branch of ever, that the court’s were persuaded selectively discre ex constituted abuse of chooses of sentence legislative and, accordingly, cerpts history from the that do will affirm. we tion coverage to define full profess the statute. II. presents Hand three substantive view, Attorney’s In Of our challenges to the district court’s order much a in this case as fice was as victim First,

restitution. contends agency service was the social Ruffen improper restitution order is because entire Agri Department of and the United damages government the are remote to Indeed, Dudley, in the Dudley. in culture argues She speculative. and Appeals for of the Fourth Circuit Court results cannot claim that the “government rejected argument and anticipated when, fact, the were trial lost[ [the] ] by noting: the dissent of the defendants presentation case caused require great perspicacity It does during comple plead guilty and after to appreciate the difference to substantial Appellant’s at 6. Brief Sec tion thereof.” person victim- restitution to the between ond, the DEA Hand asserts that because (who could, here, crime be ized as trial, she were witnesses at the agents bring- government arm the another required pay restitution should not be who, prosecution, more like- ing the but expenses. Finally, and their salaries not, prove private a ly than will be Assist argues that restitution for the party) forfeiture, third collectible Attorneys improper is because ant U.S. only by avenging United States from “government did receive some benefit on an offend- government punishing bent question.” Appellant’s Brief at the trial er. in of these warrant 8. None contentions added). (emphasis partially 739 F.2d at 177 upon judgment. the district court’s trusion Certainly, Attorney’s the U.S. Office is the damages government bringing pros- government claimed “arm of the ecution,” rights than speculative. pro neither remote nor In and it has no lesser are YWPA, mulgating Congress intended who sustain considerable eco- other victims parties, Like wrongdoer required private that the losses. most to “insure nomic [be] possible lawyers Attorney’s in the Office degree to the restore the victim the U.S. work prior well-being.” investigatory agents or her do not to his state of and the 30, time S.Bep. Cong., compensation. No. 97th 2d When the Sess. without em- compensated its reprinted Cong. government in 1982 & Ad U.S.Code which il- of Hand’s ployees min. News While the term was “lost” because statute, acts, a finan- appel just significant not defined it as legal “victim” is in the was when, congres interpreted government late courts have as loss to the cial stamps stolen and governmental Dudley, mandate to include food were sional fraudulently paraphrase used. To Abra- Ruffen, bodies. See United States v. Lincoln, (9th Cir.1986) (county lawyer’s is his stock ham time F.2d Attorney’s Of- a “victim” under VWPA since defendant and trade. When resources that agency expended has time and had defrauded social service fice case, futile, by the as in this payments), 479 U.S. rendered welfare cert. denied are (1986); losses juror, of a the financial 107 S.Ct. 93 L.Ed.2d 407 misconduct indistinguishable those from F.2d 178 incurred are Dudley, United States Cir.1984)(“the the “stock (4th government not fore that occur when is losses government agency, such establishing from that it has been trade” of another closed Agri- recovering stamps Department by the crime res as food victimized culture, stamp misappropriated. for unlawful of food are titution” use salvage guilty not a arguing government pleas charges In to lesser from statute, meaning victim within the of the the five Pepe, disagree defendants and we testimony given the dissent relies on pleas with her conclusion that those ren- government’s Subcommittee Criminal Law a retired dered the damages minus- hip civil servant who suffered a broken as simply cule because it “did not have to purse snatching. re-try original the result of a The dis- Appellant’s case.” Brief plight sent contends that the of such indi- at 6. The original has lost five jury was the motivation behind Con- viduals verdicts and suffered a mistrial with gress recognizing regard Pepe. that “too often the vic- showing Absent a of suf- ‘forgotten person’ tim has persuade been ficient evidence to a court that justice system.” S.Rep. these verdicts would have been overturned Cong., reprinted 87th 2d Sess. in 1982 and the mistrial would have occurred re- gardless Cong. offense, U.S.Code & Admin. News at 2516. of Hand’s restitution for certainly Congress pro- government’s While intended to proper.4 losses is vide restitution to victims who suffer bro- Difficulties of measurement do not hips snatched, purses ken when their are preclude ordering the court from a defend Report there is not a word the Senate compensate through ant to the victim some suggest Congress intended to allow Indeed, Congress restitution. instructed only restitution for those individuals who that those unusual cases where the “[i]n perceived “forgotten persons.” are of as precise amount owed is difficult to deter logic The ultimate of the dissent is that if mine, authorizes the court to [the VWPA] or General Motors Chase Manhattan Bank expeditious, reach an reasonable determina stolen, in had funds violation of federal appropriate by resolving tion of restitution law, a require could not achieving uncertainties with a view toward wrongdoer pay to restitution to those cor- 532, S.Rep. fairness to the victim.” No. at porations they because do not fall under 31, reprinted Cong. in 1982 U.S.Code & penumbra “forgotten persons” in Admin. News at 2537. Green v. USX Cf. capitalistic system. that, our We find un- 1511, (3d Cir.1988) Corp., 843 F.2d 1532 case, der the facts this the United States (“ certainty ‘The risk of lack of with re Attorney’s victim, a Office was even spect projections of lost income must be though may it sympathetic be as a by ”) wrongdoer, borne not the victim.’ figure aged as the civil servant who was (quoting Co., Sys. Goss v. Exxon 747 Office mugged.3 885, (3d Cir.1984)) (citing F.2d 889 Story

Here, government certainly Parchment Co. v. Paterson Parchment Co., 555, 248, harmed Hand’s conduct Paper since it lost 282 U.S. 51 S.Ct. 75 (1931)). case, “hard-won convictions of five govern defendants L.Ed. 544 In this try George and a wasted effort Pepe ment seeks restitution for salaries and ex impartial jury.” Appellee’s penses before an Brief Attorneys, of Assistant U.S. DEA argues agents Marshals, at 12. Hand and While that the fruits U.S. since their time totally energy of the Militello trial were not vitia- was wasted in the Militello ted, government because the trial as a result of was able to Hand’s conduct. There payments. tangible 3. We also do not find the aspect dissent's references to The in this case is States, McNally money v. United 483 right 107 S.Ct. republican and not the to a form of (1987), government right right 97 L.Ed.2d 292 or to the ato fair trial before an republican government impartial jury. helpful form of for an- alytical purposes. recognize The dissent fails to 4. We need not decide the ultimate that this case reach of the concerns a restitution statute that provision VWPA restitution in cases where the prior seeks to "restore the victim to his or her put that, defendant persuasive has on being.” put government evidence state of well To regardless conduct, of his or her prior being compensating its verdict state of well means would still sustained, have been only overturned. We it for the losses it hold which would not that the reach provision of the VWPArestitution wrongdoer’s have occurred but for the act. At- is sufficient to presently cover the torneys’ investigators’ facts spec- fees before fees are not us. ulative items and can be measured with as specificity stamps much as food and welfare justify Hand’s conduct to an order for compensation is no that for such resti doubt tution. expenditures permissible III.

VWPA, Congress given that desired for offenders “to undue harm Hand contends district financial victims]”, they S.Rep. have done [their right court sixth amendment violated her Cong. at 1982 U.S.Code & Admin. simple by relying confrontation “on a state added). (emphasis News at 2536 also See alleged suffered ment loses Johnson, 657 F.Supp. United v. to the defense attor delivered (D.Conn,1987) (preparer of false tax re morning sentencing, min ney on pay turns investors ordered to restitution Appellant’s Brief at 9. prior utes thereto.” penalties for tax losses incurred from however, argument, We do not reach this interest). assertion of error Hand waived the because presen failing object timely reject argument We also Hand’s which contained investigation report tence required that she should not be the method used explaining an addendum expenses salaries and of the DEA calculating restitution.6 Cf. agents they because were witnesses (8th Kail, F.2d Cir. States v. on Militello trial. She relies United States 1986) (trial presentence reliance on court’s (9th Cir.1986), v. F.2d 783 Kenney, 789 process report not of due when violative cert. 479 U.S. denied S.Ct. opportunity given defendant to con (1986), L.Ed.2d which the court of test). appeals portion vacated a of a restitution argument, Consequently, Hand’s based required order that a bank reim robber to Giambrone, wages employ burse for the United States bank (S.D.N.Y.1984), F.Supp. who him against ees testified trial. guaranteed her a 3580 of the VWPA Kenney reasoned that the court cost to § government’s hearing on whether having employees bank of miss work to directly expenses from her testify claimed flowed consequence robbery, a was possessed and ade part any but was direct actions on whether harm done make quate resources to restitu financial Consequently, to the bank.5 such an ex “ tion, There is no rejected. must be abso penditure was deemed ‘too remote to ” right hearing under VWPA. lute form restitution.’ the basis for 789 F.2d “[a]ny dispute that only provides The Act (quoting at 784 Tyler, United States v. 767 type of restitu (9th Cir.1985)). proper as to the amount F.2d 1351 In the in the court case, however, tion shall be resolved agents’ stant DEA testi 18 U.S.C. Hand, preponderance of evidence.” against against fied not but defend 3664(d) 3580(d), 18 U.S.C. redesignated charges. § ants on narcotics indicted Since § 1, 1987) 1985) (eff. (empha (Supp. III Nov. agents’ testimony fruits of the —five added). in defendants Unlike Ciam- guilty sis verdicts—were wasted a direct as brone, government’s objected who result of with Pepe, Hand’s contact we find ability to their make claimed losses and requisite causal connection exists restitution, objected during the Hand never government’s injury between the and found, Honor, however, 5. The court that MR. we re- JOHNSON: Your have the techni- paid removing report cian’s presentence fees viewed the there is film from the bank’s surveillance camera only exception was "a we direct cost of one that take and minor robbery”, warranting my thus page restitution. See that is three it lists client’s] that Kenney, 789 F.2d at age 784. fact 45 as he is in at this husband’s time. During sentencing hearing, 6. Hand’s the follow- Okay. accept that THE I’ll correc- COURT: ing exchange occurred between the court and tion. Hand’s counsel: only change MR. That is the that JOHNSON: client, you your THE COURT: Have we be made. would ask to Mr. Johnson, Hand, adequate Transcript of had an time v. to review the (D.N.J. Sentencing Proceeding Apr. presentence investigation terms of 2 report 1988), you reprinted App. Appellant’s do at 8. exception or ... she take in it? 1106 Therefore,

sentencing hearing. the district Palma, United States v. F.2d (3d Cir.1985). that there was no properly court found But even if we were read warranting hearing. Unit “dispute” light in Anglian most favorable to Cf. (3d Poliak, Hand, v. 844 F.2d ed States the fact placed that district court Cir.1988) (hearing necessary upon was because her the paying sole burden of restitu- only district court made a concluso- suggest tion does not that it was oblivious “[t]he ry finding appellant’s ability Pepe’s as to to make culpability punishment or to the restitution”) added). (emphasis already part he had that received. For his obstructing in justice, district another argues that dis Hand further $5,000 Pepe had fined and sentenced placed erroneously trict bur court sole significant imprisonment. him to a term of her, upon even paying den of restitution mere Pepe fact that Hand and received Pepe culpable. In re though equally punishments different from different contention, jecting this we note from outset judges does not strike us as irrational or persons charged same that as between and, process certainly, violative of due did offenses, per or similar Constitution “[t]he not constitute an abuse of discretion. meting qualitative mits differences out Illinois, Hand’s final is that punishment_” contention Williams 235, 243, incorrectly applied district court federal U.S. S.Ct. sentencing guidelines (1970). that found under 18 L.Ed.2d 586 We also note (Supp. 1985), Ill Angli U.S.C. as well as Hand’s reliance on United States v. criteria,7 an, (6th Cir.1986), Jersey’s sentencing New fail 784 F.2d 765 cert. de factors, 841, 107 ing mitigating to take into account 93 L.Ed.2d nied 479 S.Ct. previous as the (1986), misplaced. holding such fact that she no While had history, culpability is a she admitted her relative of co-defendants wrongdoing, fully cooperated and that she factor to be considered a restitution or der, We appellate with authorities. find that the court Anglian court admon was not bound opinion this should read to consider the factors listed ished “that not be requiring as the consideration of relative because that statute did not 1, 1987, until every or become effective culpability making restitution November place. after the this took Anglian, der.” 784 F.2d at More events case 99-217, 4,2, Pub.L. over, See No. we have held that Stat. §§ (1985). However, correctly the court [application provisions of the restitution applied procedure the issuing VWPA’s for invariably in of the VWPA will result by taking an order of restitution into con sentencing stat- disparity some since the sideration it appropriate.8 factors deemed sentencing judge ute authorizes the Specifically, it considered mitigating particular losses consider sustained case, in circumstances this as in shown its by the victim and the financial circum- defendant_ explanation punishment. of Hand’s The of stances The indi- court held that necessi- vidualized focus of the VWPA imposed in this sentence is judicial purposes tates the exercise of discretion for the punishment, sentencing process. gen- of for the long purposes So as this of exercised, however, anyone eral deterrence to who properly discretion else would abusing of disparity authority in dream the mere sentences under sacred they given equal had our protection. VWPA does not offend been laws 7. We argument find regarding Hand’s the New the amount any of the loss sustained vic- Jersey uncompelling. offense, criteria This tim as a result of the financial and, thus, case involves a defendant, federal offense resources of the the financial sentencing judge only by earning constrained ability needs and of the defendant guidelines federal imposing in dependents, sentence. and the defendant’s and such oth- er appropriate. factors as the court deems provides The statute 3580(a) (1982), redesignated 18 U.S.C. § court, determining 3664(a) [t]he in (eff. (Supp. 1985) whether U.S.C. § to order Ill Nov. 1987) restitution under added). section 3579 of (emphasis this title and restitution, the amount of such shall consider impos- same time I. jurors, while at the purposes mea- penalty js those ing a generally for it understood that criminal particular en- by this sured contempt character; punitive defendant’s “is in it is coop- her titlement to consideration vindicating authority aimed at the court’s any eration and the absence of in disrespect- the face of contumacious and criminal conduct. Jury Proceedings ful acts.” In re Grand Hand, Tran- Harrisburg Jury, v. Grand 658 F.2d United States (3d Cir.1981), and, Sentencing Proceeding at 13 script of Latrobe Steel Co. (D.N.J. 8, 1988), reprinted Appel- (3d Apr. Steelworkers, 545 F.2d 1336 added). App. (emphasis Cir.1976). lant’s statutory provision codified (1982) at 18 U.S.C. 401 states that IV. Conclusion A court of the have United States shall We conclude that the district court was power punish by imprisonment, fine statutory grant authority well within its discretion, contempt at its such of its ordering Hand More- restitution. other, authority, and none as— over, constitu- we find that it committed no (1) any person in Misbehavior of procedural imposing tional or violations presence or so near thereto as to ob- Accordingly, we affirm the sentence. will justice; struct the administration of the district court. judgment of (2) of its officers Misbehavior transactions; in their official MANSMANN, Judge, dissenting. (3) Disobedience or resistance to its respectfully opinion I dissent from the writ, order, rule, process, lawful de- majority because there are threshold cree, or command. which, me, are issues not addressed clearly Hand’s fell behavior within clearly dispositive government’s 401(1).1 Equally principle clear is the claim to restitution for loss under may uphold respect that “a court for the Act, the Victim and Witness Protection through the law utilization of the criminal [redesignated In U.S.C. § § 3663]. contempt process.” Steel, Latrobe summary, I would hold that where the of- F.2d at 1347. court, contempt of it is the fense is criminal were dispute that Hand’s actions I do not victim, court who is the not the U.S. Attor- clearly di- contempt of a stated court type of ney’s Office—which is not even the anyone involved not to contact rective Assuming victim envisioned the Act. however, trial, dispute the determi- I do arguendo that the is a victim prosecution was a victim nation that the here, injury prosecution suffered repeatedly hold Our cases these actions. intangible right tamper- is at best contempt is “purpose of criminal attorney’s free trial and fees and by authority of the court to vindicate Further, costs of an aborted criminal trial. Mc- acts of disobedience.” punishing past property contemplated by the loss Vic- Investments, Victory Corp. v. Donald’s concrete, tim and Witness Protection Act is Cir.1984) 82, (3d (emphasis F.2d 86 727 physical property, such as actual items and 1343; Steel, at added); 545 F.2d Latrobe expenses medical and money, or such as Corp. v. Frater- Steel and United States bills, intangible. hospital and not an For 1269, (3d etc., 1273 Ass’n, F.2d nal of these reasons and because decision Cir.1979). Therefore, concept majority upholding the district court’s it as it contempt as we know and criminal dangerously order of restitution comes 401, Depart- in the Justice expressed is § saying a criminal close to cost of the victim 3663] ment is not [§ government, trial can accorded to the I be restitution. respectfully dissent. hearing,

1. body; anybody approaches you, At the the district and if ever contempt upon judge, you report stated: “The based failure did not is her are to to the which she obey given my jurors judges Transcript Sentencing Hearing, order to all the Crim. do.” — 87-201-001, (D.C.N.J. 1988). suppose every any- April do I case—not to talk at 8 No. disposition

II. of the ease when she was noti- fied that a check in the order of $350.00 legislative history of the A review of the being restitution was held for her at the Protection Act indi- Victim and Witness probation appeared office. It that no one purpose the Act was cates that the behind negotiations plea involved in the with the in her had her defendant case contacted Strengthen existing legal protections for anyone the extent of nor had been aware of crimes; victims and witnesses of federal injuries. report “This sto- her stated: ... to amend title 18 of the United States way is ry typical of the casual restitution require restitution for crimes Code to U.S.Rep. No. being used in all our courts.” including personal or loss Cong., reprinted 97th 2d Sess. injury; require Attorney ... Gen- Cong. & Admin.News U.S.Code prepare guidelines eral to for the fair premise 2536-37. The behind [re- crimes; treatment of victims of federal designated “is that the court § 3663] require and to Attorney General adjudicated devising just sanctions for of- legislation requiring recommend that res- fenders, wrongdoer should insure that the titution be made to the victim before good[], degree possible, make to the may profit federal felon from his crime’s harm he has caused his victim.” Id. notoriety. Keeping purpose in mind the behind res- S.Rep. Cong., 97th No. 2d Sess. 9 titution, i.e., his to restore the victim to Cong. reprinted in 1982 U.S.Code & Ad- being, emphasis former state of well Act, min.News 2515. Pursuant legislative history personal found Attorney General, through Department injury compensation and restoration of Justice, developed the Guidelines for property convinces me that the U.S. Attor- Victim and Witness Assistance which be- ney’s type Office is not the of victim envi- July 9, applica- came effective 1983. The sioned Heinz and Laxalt when Senators guidelines tion of the internal was defined they April introduced S. 2420 on as follows: introductory language As the Senate guidelines apply compo- These to those warned, report “too often the victim has Department nents of the of Justice en- ‘forgotten person’ been the in the criminal detection, gaged investigation or justice system. exceptions, With few vic- prosecution They of crimes. are intend- ignored by tims and witnesses are either apply in ed to all cases in which individ- justice system simply the criminal used adversely victims are ual affected identify S.Rep. offenders.” criminal conduct or in which witnesses Cong., reprinted 97th 2d Sess. provide regarding information Cong. U.S.Code & Admin.News at 2516. activity guidelines, spe- ... Under these Office, Clearly, Attorney’s the U.S. which paid cial attention should be to victims authority govern- has the of the federal physi- witnesses who have suffered it, ment behind cannot be said to be the cal, financial or emotional trauma as a “forgotten person.” activity. result of violent criminal (1983) Fed.Reg. (emphasis 33774-75 add- appreciate majority’s I upon reliance ed). Ruffen, 780 F.2d During hearings held (9th Subcom- Cir.), denied, cert. 479 U.S. Law, mittee on Criminal one victim testi- (1986) S.Ct. 93 L.Ed.2d 407 (county fied to a situation which was as described was a “victim” under VWPA since defend being typical.” “all too A retired civil serv- ant agency had defrauded its social service hip ant suffered a as the broken result of a payments) of welfare and United States v. purse snatching. cooperated complete- She (4th Cir.1984) Dudley, 739 F.2d ly agencies with the law enforcement de- (“the government not is foreclosed from spite injuries her serious which cost over establishing by that it has been victimized $10,000 to treat. She later learned of the recovering the crime and restitution” for (ii) coupons) property the stamp which value of the on food the use of unlawful appeals sentencing, date of have the ... courts show that other can be a victim government found that the [redesignated 18 U.S.C. 3579 3663]. of the Act. purposes majority The this addressed contention government the can be recognize I that extensively, but focused on the harm as the property where loss a victim considered a loss of trial and concentrated on what just happen. did Here that not occurs. that trial However attractive cost. this reliance majority’s on Indeed the simplistic may appear, danger- it is method Ruffen point. my The Dudley emphasizes simplicity. ous because of its What the by government in those losses the suffered government actions lost due to Hand’s was losses the form of tangible cases were trial; right tamper-free the to a trial in a Clearly, not in money payments. these do open-minded jurors which listened to the right of the of a any way equate evidence, to the loss weighed the facts and reached an impartial jury suf- trial before a fair and impartial conclusion on those based facts. here. government fered the In his the hearing, remarks at judge expressed anger the district III. failing report the Hand’s inaction in to im- accepted Even if it must be that the a proper communications which had dev- government a victim here because the astating effect, likening it to “a cancer that court, i.e., prosecution, judiciary, and the implanted judicial system. 1.e., executive, are but branches of the Treachery Thus, juror.” her as a oath parte government, Virginia, see Ex same prosecution what the well as the other —as (1880) (the L.Ed. 676 state U.S. right to a defendants —lost was fair judicial legislative, and ex- through acts impartial jury. before This is trial an an authorities), government ecutive or intangible right right, such as to a was an indirect victim envisioned republican government, form of which can- language covered of the framers but property. not be characterized as Bak- Cf. Act, injury re- type of suffered is too Carr, 186, 209, 82 S.Ct. er v. 369 U.S. monetary The mote reduce to a value. (1962)(complaints 7 L.Ed.2d 663 based Protec- section the Victim Witness republican guaranteeing clause dealing property the loss of tion Act with nonjusticiable). form of are A provides as follows: Supreme analogous in an recent case Court (b) (1) in the case of an re- ... offense concept of regarding property situation sulting property or destruction of loss types that certain underscores the notion the offense— of a victim of not, Congress rights unless intangible may (A) property to the owner of return it, clearly and mandates be the specifically designated by or someone property injury. McNally of an In United basis owner; or States, U.S. S.Ct. (B) property (1987), noted if return of the under sub- L.Ed.2d 292 the Court that (A) clearly impossible, impractical, pro- paragraph while mail fraud statute equal an it “does not refer to inadequate, property rights, amount tects good intangible right citizenry greater of— at 2879. government.” 107 S.Ct. Com- (i) on the the value of States, 484 pare Carpenter v. loss, damage, or destruc- date of (1987) L.Ed.2d 275 108 S.Ct. tion, or Sentencing transcript at also long juror. 9. Indifference to trial as a them, every stated: defendant in indifference trial and case who to a fair was entitled the sacrifices of her fellow It undermined their, sure, comprised complying jury jurors their jurors long trial and I’m in that obligation. unambiguous clear and oath comply efforts to fulfill and conscientious Id. jurors as and the time and with their duties by sitting represented on that were sacrifices (the property Wall Street Journal has a right in keeping any confidential informa- TRANSPORT WORKERS’ UNION OF appear forthcoming tion which is to col- PHILADELPHIA, LOCAL umn), McNally, supra. Just as the 88-1206, Appellant in No. country citizens of this are entitled to a v. republican government, form of see U.S. SOUTHEASTERN PENNSYLVANIA Const., 4, they art. IV guaran- are also AUTHORITY, TRANSPORTATION public impartial

teed a trial an jury, see Appellant in No. 88-1160. Const., amends. 7 & but this is say monetary not to value can or TRANSPORT WORKERS UNION OF placed should right. be on that McNal- Cf. AMERICA, LOCAL 2013 ly, supra; Evans, United States v. v. (2d Cir.1988) (the F.2d 36 government’s in- terest in regulating foreign weap- resale of SOUTHEASTERN PENNSYLVANIA onry is property not a right under mail and TRANSPORTATION AUTHORITY statute); wire fraud and United States v. and Zauber, (3d Cir.1988) (claim 857 F.2d 137 Gould, Jr., pension fund trustees violated mail Louis Esquire, Individually F. and wire fraud statute defrauding fund capacity and in his official as Chair- of honest and employees faithful SEPTA; does not man of the Board of Robert J. support property requirement loss of stat- Thompson, Individually and in his offi- ute). capacity cial as Vice Chairman of the SEPTA; Clymer;

Board of Brian W. Harris, Esquire; Mary Judith E. C. IV. Harris, Hayward, C.P.A.; Thomas M. agree I outraged with the district court Jenkins, Esquire; Frank W. Richard E. majority and with the here that what Patri- Kutz, Esquire; Marston, David W. Es- cia Hand did juror as a despicable quire; McHugh James C. and Franklin very wrong contemptuous of the court— — Wood, Individually C. and in their offi- but it did type not result in the damage capacities cial as Members of the Board or to a victim which the Victim SEPTA, Appellants. and Witness Protection Act was enacted to protect. Therefore, I would vacate the dis- BROTHERHOOD OF LOCOMOTIVE trict court’s order requiring payment ENGINEERS, DIVISION 71 and Broth- $46,850 in government.3 restitution to the Engineers erhood of Locomotive Brennan, Appellants

Thomas C. in No. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Gould, Jr., Esquire, Louis F. Individually capacity and in his official as Chair- SEPTA; man of the Board of Robert J. Thompson, Individually and in his offi- Although this is a matter not raised Hand factual issues that are applica relevant to the appeal, I am also concerned that the tran provisions tion of the restitution of the VWPA." script hearing of the district court’s made no 760 F.2d at 480. See also United States v. Pol any finding mention of ability iak, (3d Hand's Cir.1988). 844 F.2d Palma, the amount. In United States v. 760 F.2d transcript is devoid of references with re (3d Cir.1985) we directed the “district gard courts ability pay. to Hand’s specific in the future findings to make as to the

Case Details

Case Name: United States v. Patricia Hand

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 22, 1988

Citation: 863 F.2d 1100

Docket Number: 88-5334

Court Abbreviation: 3rd Cir.