United States v. Raymond W. Vance

LOGAN, TACHA, Before SETH and Judges. Circuit TACHA, Judge. Circuit appeal This is from an order of Raymond requiring district court of restitution in $212,098.35 Oklahoma, the Bank of Century National Bank of are Oklahoma. Both banks located ap Pryor, Oklahoma. issue raised peal its is whether the district court abused ordering for the discretion in banks, rath amount of the total loss to the limiting er restitution to the amounts than with two directly associated pleaded to which the indictment did guilty. We hold that the district court issuing its discretion in the resti not abuse affirm. tution operated a recreational Vance owned Chouteau, vehicle lot in sales Oklahoma. plan In 1985 Vance entered into floor financing agreement with Bank (BOK). agreement provided Oklahoma percent of the that BOK would finance 100 purchase price ve- of certain recreational security exchange for a interest hicles vehicle, Upon those vehicles. the sale reimburse BOK the amount Vance was to money borrowed for that vehicle includ- fi- ing interest. Vance secured similar nancing arrangement Century Na- with Bank), (Century Bank tional of Oklahoma Pryor, Pursuant also located in Oklahoma. plan agreement, Century floor Bank purchase price recrea- also financed the exchange vehicles in for Vance’s exe- tional promissory security of a note and cution agreement Century interest favor Bank. Grant, (Michael Hughes Carl E. Okla- floor the terms Vance violated briefs), Okl., him on the City, homa with plan agreements by selling cover- vehicles Okl., defendant-appel- City, Oklahoma plans failing to by the remit the ed

lant. proceeds Century to BOK and Bank. Graham, (Tony Vance was indicted six counts of bank M. David O’Meilia under 18 U.S.C. 1344.1 Each count Atty., Pennington, Asst. U.S. fraud and Susan W. execute, cutes, attempts part, imposes a scheme or arti- crimi- in relevant Section federally upon "knowingly chartered or penalties exe- fice ... defraud nal one who that was of the indictment recited a vehicle review this court. See Fed.R.Crim.P. plan floor 52(b); sold in violation one of the Wright, 3A C. Federal Practice and agreements. Vance entered a Procedure, (2d at 294-95 ed. guilty to Counts II and VI of the indict- of restitution rests within pursuant ment to a of the trial discretion court. See Herz States other Attorney. the United All Court, v. States United Dist. 699 F.2d feld of the indictment dismissed. counts 503, (10th Cir.), 505-06 464 judgment imposed of the district The court 815, 70, (1983). 104 78 L.Ed.2d 84 suspended years a sentence of and five A order will not be overturned probation ordered as a condition of an absent abuse discretion. Cf. make restitution full loss Vance for the Richard, 1120, States v. 1122 by sustained the two banks result of as a (10th Cir.1984) (discussing review of resti by original the entire covered VWPA). tution order under $42,- and indictment: to BOK Century to Bank.2 610.93 provides, The Act Probation relevant part, as follows: II and Counts VI of the indictment relat- specific ed to vehicles involved in fraud- entering Upon judgment of convic- The ulent scheme. total loss related any tion ... ... when satisfied $28,600. vehicles was chal- those justice the ends and the best order, lenges claiming public interest of as well as the de- $28,600 it should have been limited to the thereby, may fendant will served sus- directly associated with II and Counts VI pend imposition or execution of sen- indictment. place tence proba- and defendant on argues The Government period upon tion for such and such terms object failed to to the court’s of resti- and as the conditions court deems best. sentencing tution and therefore waived right sparse his to review. The record probation period ... shall not designated impossible this case makes it years. exceed five effectively to determine whether Vance probation among While on the con- right waived his review. Because thereof, the ditions defendant— illegal of an sentence would con- plain error, required pay May stitute do not a fine in one we assume but sums; objection preserved that the for decide was or several restitution, years financial 18 U.S.C. insured institution.” five makes within the dis- 1344(a). court, § a "condition cretion of the thereof.” The "you judgment court's stated that [Vance] specify 2. The district court’s order does not period placed probation years for a of five probation whether the condition of posed was im- special you condition thereto that make provision under the relevant of the Vic- restitution.” (VWPA), tim and Witness Protection Act 18 recently The Seventh Circuit discussed the (renumbered 3579 § § U.S.C. as 18 U.S.C. 3663 interplay between the two acts. "The VWPA 1, 1986), effective November or the relevant 3651; rather, supersede does not it com- Act, provision of the Probation 18 U.S.C. 3651 Thus, plements the section. aas 1, 1987). (repealed effective November This probation governed by condition still is sec- recently recovery held circuit that a victim’s tion restitution as the VWPA 3651 while of an exe- under charged is not limited to the amount particular relating in the is available indictment cuted sentence for offenses commit- Hill, January the offense. United States ted after 1983 under section 3579." (10th Thus, judge Mischler, VWPA, proceeded under the he was well within Cir.1986) (footnote omitted). Because the dis- to order the full his discretion restitution for findings necessary judge not trict did make the of loss to the banks. VWPA, sentencing under the order ech- however, judge, district mention did not by imposing Act oed the Probation restitution as any and did the VWPA not make of the detailed probation, we assume that the condition of findings required that are factual judge ordered restitution under section district Additionally, paral- judgment Act. the court’s requirements lels the structure and of the Pro- probation Act. Section 3651 limits bation Act the Probation Restitution required to make restitution May be func- important an rehabilitative “serves parties for reparation aggrieved requires it defendant to ac- tion because loss caused actual guilt responsibility knowledge accept was which conviction for offense or her actions.” United States his had.... (9th Cir.1986), Whitney, 785 F.2d (repealed effective No- 18 U.S.C. Cir.1988) amended, 838 F.2d 404 vember (amendment affecting quoted portion); not phrase issue here whether the 1055. In our 683 F.2d at see also for which convic the offense “caused view, interpreting the term “offense” limits discretion of the had” encompass all the acts of broadly that the defendant judge trial to order thereby permitting scheme to defraud — amounts associated up to sentencing judge to order restitution with the counts associated with the the entire amount to pleaded guilty. We decline follow the limiting rather than res- fraudulent scheme phrase in such that define that circuits the the titution to amounts associated with See, e.g., terms. United States v. narrow pleaded guilty counts to which a defendant Cir.), Black, 1342-44 purposes the rehabilitative —furthers the Act. Probation (1985); 88 L.Ed.2d 557 United States Furthermore, interpretation of a broad (11th Cir.1983).3 Johnson, 700 F.2d scope sentencing judge’s of the discre- Third, Fourth, join the and Seventh We tion the Probation Act avoids unnec- Circuits, original hold that when bargaining essary plea restrictions charged conspiracy fraudu or indictment process. agree with the Seventh Cir- We scheme, may per the restitution order lent cuit that: missibly encompass all losses related to the proposed restitution as Restriction of conspiracy need not limit scheme or and be severely the defendant would restrict the counts to ed those associated with to plea-bargaining in multicount indictment pleaded guilty. See which the defendant cases, the Government because would (3d Woods, 82, 88 States v. plea bargains prohibited entering from Cir.1985); McMichael, 699 as if to some counts that would eliminate 193, 195 (4th Cir.1983); United States F.2d illegal proceeds, for further Cir. though receipt proceeds such even defendant, acknowledged by as require It also here. Govern- Here, to perpetrated a scheme de- hun- to indictments with ment obtain Although Century BOK Bank. fraud and of counts cases ... where dreds by separate acts the scheme was furthered widespread is individu- scheme one of but specific failing report the sales of ally of fraud. small acts in violation of the recreational vehicles Davies, 683 F.2d at 1055. is overall plan agreements, floor “[i]t all pleaded guilty scheme that central to the counts In Davies the defendant gives and [charged in rise to two counts of a multicount indictment the indictment] for mail fraud. The court held that restitu- financial loss.” United the victims’ properly be awarded Woods, 88. could 775 F.2d at We there- States v. may damage as a whole loss fore hold that the scheme of actual and the amount victim, offense for the unitary even that exceeds treated as a to, pleaded in the counts when determining amount purpose (a) pro- has obtained the the defendant 3651. here, portion holding reject not we do Johnson to 3. The Eleventh Circuit remanded may enough suggesting acquittal was not awarded that assure that restitution an acquitted to which defendants bar restitution. Although presented for review not mistried. part ongoing (emphasis original). ceeds an as scheme We therefore hold time, (b) defraud which extends over and the district court did not abuse its the amount of to the victim in ordering discretion restitution for the specificity has been and established entire amount Vance obtained the fraud- in- admitted to the defendant in the ulent scheme. dictment, agreement, plea plea Although properly the court can order presentence proceedings. in an representing Id. total loss to the victims of crime under Act, case, In Probation federal rules proceeds this obtained as require given first be ongoing of an BOK defraud Century notice possibility prior Bank. Vance does not contest is a Further, entering either a guilty plea. See Fed.R.Crim. the amount owed to bank. 11(c). between Vance and P. A 1985 amendment to rule 11 clearly sentencing stated that Government requires plea before discretion remained with the trial court: guilty, informing in addition to the defen- possible dant of the penalty maximum agreements

There are no whatsoever mandatory penalty, judge minimum your to what sentence client defendant, must inform the and determine should pursuant receive words, understands, sentencing agreement. the defendant In other “that mil remain in total also discretion of the defendant the judge. Accordingly, trial court pur- any make restitution to of victim the of- 4 agreement, suant of this terms fense.” your punishment client faces a maximum Again, sparse designated the record (10) imprisonment

of years’ ten and/or in this impossible case makes it to deter imposition faces of the a maximum fine judge mine the $500,000.00 whether informed Vance of special of assess- $100 possibility the of agree- restitution under the Pro Finally, ment. there be no taking understandings plea. bation Act at the time of the regarding ments or this Assuming judge other than set to those failed inform restitution, forth in this possibility document. Vance of the of we 11(c) provides part mandatory possible 4. Rule relevant tion or to minimum "[bjefore plea guilty penalty provided of or con- nolo maximum the offense to tendere, pleading. the court must address the defendant which the defendant is The VWPA open personally any court and inform the defen- authorizes restitution in addition to other of, penalty by Alternatively, dant provided determine that the defendant un- law. the Pro- charge only of derstands ... the nature to which bation authorizes Act restitution as a con- offered, plea mandatory probation arising suspension is minimum dition of from the law, penalty provided by any, maxi- of of the execution defen- Hence, VWPA, law, possible penalty provided by dant’s sentence. under the resti- mum ing includ- sentence, and, any special parole may be to a the effect of tution ordered in addition term Act, may applicable, may while under the Probation restitution when the court also only be ordered in lieu of sentence. any the defendant to make restitution to victim offense_” 11(c). of adoption Fed.R.Crim.P. that at the The fact time of 1985 amend- appears of the VWPA to be the reason Probation to ment the repealed Act was scheduled amending See for advisory rule 11. Fed.R.Crim.P. 11 1, 1986, Comprehen- November see (1985 amendment). note 1984, committee's sive 473, Control Pub.L. No. Crime Act 98- clear, however, Stat.1976, 1987, It is not what effect 2, this amend- 212(a)(2), tit. 98 regarding was have ment intended to the Proba- explain the failure to mention the rule’s effect Although language tion Act. of rule 11 fails under the Probation Act. notice distinguish between restitution requirement one At circuit has noted Act, VWPA and under does informing the Probation it possibility the defendant of the specifically judge required state that the is distinguishing under rule 11 without " give "may notice when restitution abo be or- VWPA between restitution under the and resti 11(c)(1) (emphasis deciding dered. Fed.R.Crim.P. ed). add- tution the Probation ex Act interpreted require plicitly requirement applies This the rule 11 whether Grewal, judge inform the defendant of United 825 F.2d both. See States v. possibility there is a addi- when restitution in Cir. plain, meaning of a criminal is harmless.5 See statute error to be any such hold 244, to include Pomazi, 251 statute will not be construed States v. See, anything beyond e.g., letter. (9th Cir.1988)(failure give of res- its Unit notice 794, 796 Sparrow, held harmless when ed States VWPA titution under 1004, (10th Cir.), possible 450 U.S. prior had notice fine (1980). And ultimately S.Ct. L.Ed.2d 209 of restitution amount in excess ordered.) meaning of a criminal doubts about the are resolved favor of defen statute Here, plea petition to enter Vance’s Bass, 404 dant. United States attorney specifically that his guilty states L.Ed.2d 488 of restitu- possibility him of the informed (1971). vio majority’s construction VWPA. Vance was there- tion under the lates these rules. possibility clearly res- fore aware upon any leg- majority rely does not any of formal notice despite titution lack plain history circumvent the lan- nothing islative from the court. There 3651; focusing guage it does plea would so to indicate that Vance’s record “offense,” ignoring the words had the court notified word have been different had,” concluding “for convictionwas under the Probation Act. him of restitution Further, possible that the “offense” was the total scheme was informed of a But $500,000 agreement defraud the banks. a conviction was let- fine “offense,” giving even ter, not had for the total well an amount below ordered, interpretation, because ultimately that word a broad government voluntarily dismissed four sen- specifically was on notice that constituting the indictment counts of tencing remain “in the total discre- of the “offense.” judge.” of the trial court The district order that Vance court’s If term is not limited “offense” probation is therefore AF- a condition of phrase, had” there is the “conviction was FIRMED. unitary theory nothing in prevent an order of restitution based on LOGAN, dissenting: Judge, Circuit acquit counts for which the defendant respectfully language Although appears I dissent. dis majority ted. Act, 18 by noting “acquit the Federal Probation U.S.C. that claim such a result 3651, restitution,” enough is clear: restitution be ordered tal be to bar ante § added), logic (emphasis the offense 1170 its only for “caused n. 3 Here, interpretation contrary. had.” con- 3651 is to the which conviction was for § to which I do see the “conviction was had” had on the two counts not how viction was can plain lan- words of limitation read out pleaded guilty, and the be dealing plea bargain with a guage limits restitution to when of the statute dealing in with an counts.1 and read back when damages charged in those two I had, acquittal. All of the cases have found not be not and could Conviction was had, directly that confront issue have held that dis- on the four counts were Orr, acquittal 691 that an bars restitution on missed. See United States v. 431, Cir.1982) (“restitution (9th particular count under F.2d 432 § 145, (3d Pollak, 844 F.2d 152 in counts States v. only for amounts be ordered [can] Cir.1988) (using unitary notion to had not upon which conviction was counts, de award restitution on counts which amounts set forth in dismissed be acquitted fendant was “would at odds greater amount a a since conviction for significance acquittal had”). of an in our the with the not When could have been conviction; nothing guilty plea 11(h) ‘‘[a]ny 1. A is "itself a provides from variance 5. Rule judgment give but determine remains required by which does procedures this rule Alabama, 238, punishment.” Boykin 242, 395 U.S. disregard- rights shall be affect substantial not 1711, 1709, (1969); 23 L.Ed.2d 274 89 S.Ct. 11(h). Fed.R.Crim.P. ed." 626, Crockett, 812 see United States v. F.2d also Cir.1987). (10th 629

1173 (footnote omitted); jurisprudence”) court by preponderance criminal of the evi- Johnson, 699, United States v. 700 F.2d dence.” Id. 3664(c) (d). & § (11th Cir.1983) (“In multiple a count 701 I departure believe that from plain indictment, restitution is restricted to the meaning permit statute a restitu conviction,” that result in not those counts tion order in excess the amounts acquitted which the “were defendants charged in the counts which there was Brown, mistried.”); United States justified conviction can be the basis 704, F.2d 711 699 enforcing bargain struck agree prior I also believe that our case law at ment between the defendant implicitly accepts the narrower read- See, e.g., United States v. government. 3661. United States v. give ing I would § Suter, 523, (7th Cir.), 755 F.2d 527 Hill, 402, Cir.1986), 798 F.2d 405 in- 1103, 2331, 471 105 volved Victim and Witness Protection United States v. (1985); L.Ed.2d 848 (VWPA), 3579(a) (now Act 18 U.S.C. codi- § Green, 1203, (9th Cir.1984); 735 F.2d 3663(a)). fied at 18 U.S.C. We there held § restitution under VWPA was not (7th Cir.1982); Phillips v. Unit in specified limited amounts the indict- States, (9th Cir.1982). ed particular offense, ment or of an Requiring agreement of the defendant we stressed that VWPA does but “the not voluntary ensures the decision is a language.” limiting contain [§ 3651’s] knowing important rights. waiver of See 405. We also that the main stated States, Brady v. United 742, 748, 397 U.S. is compensatory objective of the VWPA 1463, 1468, (1970); 90 S.Ct. 25 L.Ed.2d 747 prosecutor and that the “decision of Boykin, 395 U.S. at 89 S.Ct. at 1712. manner in indict defendant and the which little, bargain There can no explicit any- a defendant is indicted have without meeting Therefore, objectives I thing, do with the minds. could not Id. Finally, VWPA.” we noted hold that lack of notice Vance on the “[wjhile provisions provide the VWPA might required he greater compen- district courts latitute excess that set out sating victims, crime the VWPA also im- pleaded guilty counts to which he could be poses procedural requirements several adopting harmless error. The circuits which not effect under the Federal majority’s might require view of not Probation Act.” Id. at 406. explicit agreement larger an restitu- total, clearly they require but more pro- does number of VWPA have a specific notice of the amount of restitution present justi- not tections might than Vance ordered received very fies different construction of the here.2 The Circuit’s imple- Seventh rule court, acts. Under the the in two VWPA menting unitary theory, the enunci- determining restitution, order whether Davies, v. in States ated in considers addition to the amount of the (7th Cir.1982), quoted by loss, and the ma- victim’s “the financial resources of defendant, jority, presupposes notice to the defendant the needs and financial earn- upon of amount he be called ing ability of the and defendant the defen- (amount See id. dependents, pay. dant’s and other at 1054 such factors by must be as court deems “admitted to defendant in appropriate.” 18 U.S.C. 3664(a). indictment, agreement, plea Before the court acts it must and defendant, presentence proceedings”). plea disclose this to the and In information “[a]ny dispute proper plea agreement provided and as to the itself amount type by probation restitution shall be resolved for restitution as a condition of page might subject 2. The on a 2 it was standardized stated he be to a fine as printed containing pages, only $500,000. part form high several nothing as form said The about applicable would of which be to Vance. On any § 3651 amount restitution. R. Tab page might 3 the form that referenced Agreement Min Plea 3. 12/14 VWPA; have to acknowledged bility of its before a subse- in by quent fraud order of restitution an amount loss caused his before count(s) exceeding charged plea. his Id. at in the accepted the court Paul, 783 sus- 1055; pleaded may v. the defendant be also United States see Cir.1986) (possibility of 84, 88-89 tained.” during and was raised discussed at 499. Id. modified on plea hearing; restitution order majority also on the Fourth relies to amount defendant appeal to conform opinion in McMi Circuit’s plea hearing). during admitted chael, In 699 F.2d 193 Woods, 775 F.2d In United States McMichael, although apparently (3d Cir.1985), majority, relied sentencing not mentioned until was order and its “the likelihood of a restitution hearing, the district court explained fully defen- extent were [the proceedings to time “recessed the allow court by the district before dant] McMichael, attorney, his rejecting In defendant’s plea.” government’s attorney to determine how permitted to that he should be contention had much been embezzled whether plea, Third guilty his Circuit withdraw willing repay be McMichaelwould stated that returned, parties amount. When the question can no on this record “there be court McMichael’s counsel advised the unequivo- was that defendant told but agree to that his client would an order im- would terms that restitution be cal resti- restitution and the amount of posed probation. $14,119.06. McMichael, tution should be plea ac- lengthy colloquy before the himself, Virginia stated that the Bank of It could not clearer. is also cepted to at in res- was entitled district court significant that after the he titution and that wanted court restitution, impose its intention to stated repayment of that amount as a order opportunity it defendant an afforded the probation.” condition of plea go to trial. his withdraw Id. at Thus, accept plea did not repealed, has Section 3651 now been indicated he until after the defendant perhaps case of no because of that this is or- that restitution understood great except I to Vance. But moment option and that he had the of ask- dered legal principles write dissent because ing trial.” of criminal applicable to the construction requirement implicit notice Id. at 86. protections are procedural statutes and was formalized United States Woods majority opinion. I would slighted Hawthorne, (3d Cir.1986). 806 F.2d 493 limit the amounts Hawthorne, Third In Circuit held expressed in the counts which Vance count(s) sought on a “[W]here pleaded guilty. ex- restitution in an amount on which ceeding charged particular

count(s) properly imposed, the

government negoti- must the course plea,

ating the inform the defendant re- possibility that restitution

quired so to afford the defendant adequately all opportunity

full to assess entering plea consequences prior provision of a guilty. In the absence plea agreement, the restitution in the must, prior

district possi-

plea, inform the defendant

Case Details

Case Name: United States v. Raymond W. Vance

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 21, 1989

Citation: 868 F.2d 1167

Docket Number: 88-1224

Court Abbreviation: 10th Cir.