United States v. Schrimsher

58 F.3d 608

11th Cir.

1995

Check Treatment

UNITED STATES of America, Plaintiff-Appellee, v. William Michael SCHRIMSHER, Defendant-Appellant.

No. 94-6751

United States Court of Appeals, Eleventh Circuit.

July 14, 1995.

April 20, 1995.

609 F.2d 608

Non-Argument Calendar.

reduced by that amount so that Fickling will not recover for damages he did not incur. See, e.g.,

Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573, 591 n. 29, 94 S.Ct. 806, 818 n. 29, 39 L.Ed.2d 9 (1974) (double recovery for tort not allowed), reh‘g denied, 415 U.S. 986, 94 S.Ct. 1582, 39 L.Ed.2d 883; (same).

Breach of Fiduciary Duty

In exchange for Ocean Forest‘s general partner‘s agreement not to object to Loyola‘s foreclosure on Ocean Forest, Loyola released Friedman from his personal guarantees and agreed to pay $430,000 of the partnership‘s debt to certain creditors. Unlike Friedman, however, Fickling received no consideration for the release of the partnership‘s interest. The jury‘s determination that this constituted a breach of fiduciary duty that Friedman owed Fickling, and that Loyola assisted in this breach, is sufficiently supported by the evidence. The jury could find that Fickling, as 50% owner of the partnership, was entitled to one-half of the $430,000 Loyola paid to Friedman.

Loyola‘s Complaint on Fickling‘s Guaranty

We affirm the district court‘s summary judgment in favor of defendant Fickling on Loyola‘s original complaint. The evidence, as argued in the briefs, indicates that the loan documents were indeed materially altered. Contrary to Loyola‘s argument, those who changed the agreement had no authority from Fickling to do so. There is no evidence from which a jury could find that Fickling could be held responsible for these alterations.

Fickling‘s Counterclaims

Since the outcome of Fickling‘s securities and personal claims would in no way affect the amount of Fickling‘s recovery, other than to indicate whether there were alternate grounds for recovery, these issues raised on cross-appeal are dismissed as moot.

Conclusion

We AFFIRM the finding of subject matter jurisdiction, and all of the district court‘s award except that the total award is to be reduced by $520,000 to prevent “double recovery,” or, more precisely, recovery for damages which Fickling did not incur. We VACATE AND REMAND the judgment for modification in this regard. We DISMISS as moot Fickling‘s claims on cross-appeal.

AFFIRMED IN PART, DISMISSED IN PART, VACATED IN PART, AND REMANDED.

Fred B. Simpson, Simpson and Willisson, Huntsville, AL, for appellant.

Claude Harris, U.S. Atty., Birmingham, AL, for appellee.

ON PETITION FOR REHEARING

Before TJOFLAT, Chief Judge, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

The 1990 amendment to the Victim and Witness Protection Act (the “VWPA“) provides, in pertinent part, that a sentencing judge may order restitution “to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3) (Supp. V 1993). In this case, pursuant to a written plea agreement, appellant William Michael Schrimsher pleaded guilty on May 10, 1994, to one count charging him with possession of a stolen motor vehicle in violation of 18 U.S.C. § 2313 (1988 & Supp. V 1993). The plea agreement stated that the court “must/may consider ordering restitution“; the agreement, however, did not indicate the amount of the restitution. Schrimsher appeals the district court‘s restitution order, asserting that the sentencing judge violated the VWPA by ordering Schrimsher to pay restitution in excess of the amount contemplated by the plea agreement. We find that, by his own admission, Schrimsher agreed to the full amount of the restitution ordered by the sentencing judge and, therefore, affirm.

I.

At the time of his arrest on February 28, 1994, Schrimsher possessed three stolen motor vehicles, including the vehicle that formed the basis of the single substantive count to which he later pleaded guilty; each of the three vehicles became the subject of separate counts in an indictment charging Schrimsher with multiple violations of section 2313. At the sentencing hearing on July 14, 1994, the court, after announcing that it would order restitution pursuant to the plea agreement, sought to determine the amount of restitution the parties contemplated when they entered into that agreement. Counsel for Schrimsher advised the court that although “the plea agreement does not set out specifically that [Schrimsher] will agree to restitution [for the] three automobiles ... we represented by stipulation [that Schrimsher] knew the cars were stolen ... and he had the three cars so he is responsible for them.” When further questioned by the court as to the extent of the plea agreement, defense counsel continued to insist: “We take responsibility for those three.”

II.

Prior to congressional amendment of the VWPA in 1990, the Supreme Court determined that the Act permitted a sentencing judge to order restitution “only for the loss caused by the specific conduct that is the basis of the offense of conviction.”

Hughey v. U.S., 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). After Hughey, courts were in disagreement as to the effect of a plea agreement that called for restitution in an amount greater than the loss directly arising from the offense of conviction. Compare (“Parties to a plea agreement cannot increase the statutory powers of the sentencing judge to authorize restitution simply by stipulating to restitution beyond that allowed under the relevant version of the Act.“) with (per curiam) (“[I]f the [Federal Probation Act] allows restitution beyond the offense of conviction when the defendant agrees to such in a plea agreement, so too does the VWPA.“), cert. denied, .

On November 29, 1990, in response to

Hughey, Congress amended the VWPA and added a provision, section 3663(a)(3), authorizing a sentencing judge to award restitution commensurate with the terms of a plea agreement. Subsequently, the courts of appeals have uniformly held that the amendment does not contravene the limitations placed on the sentencing judge by the Supreme Court in . See, e.g., ; ; (per curiam). See also (recognizing the effect of the amendment). We join these circuits and hold that the 1990 amendment to the VWPA gives the sentencing judge discretion to order restitution in an amount greater than the loss relating to the offense of conviction when the parties have assented to such restitution in a plea agreement.

III.

We now must determine what effect, if any, defense counsel‘s admission at the sentencing hearing that Schrimsher accepted restitutory responsibility for the three vehicles has on the interpretation and operation of a plea agreement otherwise silent as to the amount of restitution. At the hearing, defense counsel gave the following unambiguous account of the negotiations surrounding the plea agreement: “[W]e represented by stipulation [that Schrimsher] knew the cars were stolen ... and he had the three cars so he is responsible for them.” This statement is a clear admission by Schrimsher that, as part of the plea agreement, he effectively conceded, indeed stipulated, that the court could order restitution for the three vehicles in question. Accordingly, Schrimsher‘s argument on appeal that the court lacked the authority under section 3663(a)(3) to order restitution for the vehicles is without merit. Furthermore, even if the argument had merit, Schrimsher waived the point by inviting the court to order the restitution he now contests.

Given that there is no reason to remand the case for additional proceedings on the issue of restitution, the judgment of the district court is AFFIRMED in full.

IT IS SO ORDERED.